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US settles white males' bias suit

Justice to pay $11.5m in preferential treatment case

WASHINGTON -- The Justice Department has agreed to settle a class-action lawsuit with as many as 550 white men for $11.5 million, a rare win for the class of lawyers who say they were not chosen for high-profile jobs because of gender and skin color.

Critics say the settlement, disclosed in the Federal Register last week and confirmed by Justice officials, marks a milepost in the Bush administration's active opposition to preferential treatment for ethnic minorities in employment and education.

Last year, the Justice Department persuaded the Supreme Court to throw out the University of Michigan's undergraduate admissions program, but the court upheld the use of affirmative action in university admissions.

Now, faced with claims by hundreds of white men who say they were passed over for federal immigration judgeships in the mid-1990s, the Justice Department has agreed to settle a case in which the Clinton administration's affirmative action policies are alleged to have created their own bias.

Critics saw the settlement -- which must be approved by the Equal Employment Opportunity Commission -- as an effort to undermine affirmative action programs.

"The department itself is committed to wiping out affirmative action, and this [settlement] is a way of going at that," said Rutgers law professor Alfred W. Blumrosen. "What's 11 million bucks if they can establish this principle of color blindness?"

Supporters lauded the settlement as a blow against racial preferences. "They are affirming once again that affirmative action is discrimination against whites," said Suffolk University Law professor Gerard J. Clark.

The Justice Department has not acknowledged fault in its affirmative action program throughout nine years of litigation and five months of mediation. If approved by an administrative judge at a fairness hearing next month, the settlement would not set a precedent because the judge will not issue a binding legal opinion.

A Justice Department spokesman, Charles Miller, declined to comment.

"It's a little ironic on the one hand because you have seen efforts over the years to achieve minority representation, and these are laudable efforts," said Michael J. Kator, managing partner at Washington-based Kator, Parks & Weiser, which is handling the case. "But they have to be done legally and they have to be done correctly. In this case, they went beyond what they could."

The case was born as an individual lawsuit in 1995 when Texas lawyer Lawrence D. Durnford was passed over for an immigration judgeship. That year, Chief Immigration Judge Michael J. Creppy wrote a column in an immigration law journal outlining the agency's intention to expand efforts to diversify hiring "at every level -- from IJs [immigration judges] to clerks." The plaintiffs' attorneys said Creppy's affirmative action position proved to be their strongest evidence.

"We are focusing our efforts on diversifying the bench based on ethnicity, gender, disability, and diverse professional backgrounds," Creppy wrote in the February 1995 edition of Interpreter Releases. "I believe that the bench should reflect the composition of the greater society."

It's unclear how many people will receive awards under this exact class, "white male applicants for employment not selected as immigration judges during 1994 and 1995," but the Washington law firm handling the case estimates that between 150 and 550 white men were turned down for any of 100 openings during those two years.

Michael Denny, who is white, was a military judge when he applied twice for an immigration judgeship and was interviewed twice. A friend familiar with the process told him "only blacks were going to be hired."

"My dream was crushed," said plaintiff Ira L. Frank, who had had his sights set on being an immigration judge since 1973, "not necessarily because of my lack of qualifications, but allegedly because of being a white male."

Stories like these abounded in a basement conference room at the Grand Hyatt Hotel in Washington last week, where 13 middle-aged white male lawyers gathered for a briefing on the class action suit from their own attorneys.

"We got every penny out of the government that we thought was remotely possible," said Kator, whose firm will receive 33 percent, or $3.8 million, of the $11.5 million settlement.

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