Court Avoids Issue of State Aid on Minority Test Scores : Appeal Charging Reverse Bias Is Denied

The Supreme Court, rejecting claims by white job seekers of “reverse discrimination,” Monday let stand an appellate ruling allowing state agencies to unilaterally raise the test scores of minority applicants without a court finding of previous racial bias.

The justices, over three dissents, refused without comment to hear a case brought by a group of 15 white New York state correctional officers who protested that they were unfairly bumped down a job-promotion list when the state civil service commission adjusted test results to give more minority candidates passing scores.

Key Issue Cited

But Justice William H. Rehnquist, joined in a sharp dissent by Chief Justice Warren E. Burger and Justice Byron R. White, said the court should have reviewed the case to resolve a key issue left open by previous rulings: how far public employers can go in implementing voluntary affirmative action plans without violating the rights of non-minority employees.

The rights of such workers might be violated if state agencies “simply cave in” to the threat of lawsuits without a legal determination that their policies have been discriminatory, Rehnquist wrote in a six-page dissent.

A state, he said, “has a duty to act non-discriminatorily toward both minority and non-minority applicants and its employment decisions must be justified to both sides. States should not be allowed to practice racial discrimination anew under the guise of atoning for past discrimination or because of the difficulties with mounting an otherwise legitimate defense of a lawsuit.”

The three dissenting votes fell one short of the four required to grant review, thus enabling the court to sidestep a volatile “reverse discrimination” issue for now. The court ruled in 1979 that private employers, acting without court orders, voluntarily could adopt plans to eliminate past job segregation. But still unsettled are the permissible statutory and constitutional limits for similar actions by states.

Captain Appointments

The case before the court (Bushey vs. New York State Civil Service Commission, 84-336) involved a long-standing legal battle over job promotions for state correctional officers. At stake were appointments to the rank of captain--a post never held by a minority officer.

In a written test administered to 275 candidates in 1982, only 25% of the minorities passed, compared to 48% of the whites. State officials weighed the test results’ adverse impact on minorities and the likelihood of a suit by minorities--and decided to adjust the scores to raise the minority “pass” rate to about 50%. The white job applicants then brought suit, charging “blatant” discrimination.

A federal district judge ruled that the state’s action, taken without any court finding of previous discrimination against minorities, violated federal civil rights statutes. But the U.S. 2nd Circuit Court of Appeals in New York reversed the ruling last year, holding that such a finding was not a prerequisite to such action.

The appellate court said the disparate impact of the test on minorities was sufficient in itself for the state to “score the examination in some race-conscious fashion.” The court ordered further proceedings, including a review of the specific method the state used to alter the scores.

The justices’ action on Monday in refusing the white officers’ appeal does not represent a full-scale ruling on the issue but merely leaves the appellate court decision intact. Other courts around the nation can choose to follow it or not.

Despite the setback, Richard R. Rowley of Albany, N.Y., attorney for the white officers, predicted the case could come before the high court again in subsequent proceedings, where the officers would have another chance to press their claim of discrimination.

Rowley noted that last year, in striking down a court order requiring the city of Memphis, Tenn., to rehire laid-off minority firefighters over non-minorities with more seniority, the justices had implied doubt about the validity of affirmative action plans granting preferences to minorities that have not personally suffered discrimination.

“This action today doesn’t drive a stake through the heart of the case,” he said. “With three of the justices coming out as they did and the Memphis case . . . this court may be moving away from some of its past decisions.”