Justices Accept Minority Preference Case : To Rule on Union-Approved Layoffs of Whites With More Seniority

The Supreme Court agreed Monday to review a potentially far-reaching reverse discrimination case, saying it would decide whether the Constitution permits public employers, under union agreements, to lay off white workers to protect the jobs of blacks with less seniority.

In another significant case, the court said that it would review a Pennsylvania law that had imposed many procedural restrictions on the right of women to have abortions.

The employment case presents an important unresolved issue in the debate over affirmative action. The justices ruled last June in a case involving firefighters in Memphis, Tenn., that federal statutes barred courts from ordering municipalities to protect minority members by dismissing whites with more seniority. But the justices specifically left open the question of voluntarily adopted minority-preference plans.

Complaints by Whites

Public-employment affirmative action programs--both voluntary and court-decreed--are widespread. Many have encountered opposition: In the four years ending in 1983, for example, more than 1,500 complaints were filed with the U.S. Equal Employment Opportunity Commission by white males charging racial discrimination by public employers.

The Reagan Administration, an outspoken opponent of quotas, has urged an end to court-ordered plans that grant racial preferences to job seekers who have not personally been the victims of discrimination. A Justice Department spokesman said government lawyers would study the new case to decide whether to seek to participate when it comes before the court in the term that begins next October.

The case (Wygant vs. Jackson Board of Education, 84-1340) involves an agreement negotiated by the Jackson, Mich., school board and a teachers’ union. The pact provides that white teachers with more seniority would be laid off if necessary to preserve the existing proportion of black teachers on the staff.

The agreement was based on long-time numerical disparities in the racial makeup of the faculty rather than on discrimination against specific teachers.

Ten white teachers who were laid off in favor of minority teachers filed a federal civil rights suit in 1981 challenging the plan. Nine of the 10 have since been rehired, but all 10 still are seeking back pay.

The U.S. 6th Circuit Court of Appeals in Cincinnati upheld the Jackson plan last October, holding that the Supreme Court’s decision in the Memphis case, involving a court-ordered plan, does not affect a voluntary plan reached through collective bargaining. The appellate court based its ruling largely on a 1979 Supreme Court decision that a minority-preference agreement between a private employer and a union does not violate federal anti-job discrimination statutes.

In the abortion case (Thornburgh vs. American College of Obstetricians and Gynecologists, 84-495), the court next term will review Pennsylvania’s 1982 Abortion Control Law, most of which was struck down by a federal appeals court on the grounds that it infringed on the right to abortion.

Detailed Abortion Reports

Among other things, the law required that women be informed of the potentially detrimental physical and psychological effects of abortion and be provided information about the availability of public assistance benefits for prenatal care and childbirth. Doctors performing abortions were obligated to file detailed reports with the state, and the law required that a second physician be present to help save an aborted but viable fetus.

The decision to review the case could signal a shift on the issue within the court. In 1983, three members--Justices Sandra Day O’Connor, Byron R. White and William H. Rehnquist--dissented when the court struck down a series of state and local restrictions that made abortions more difficult to obtain. The majority stood by its controversial landmark decision of 1973 granting the constitutional right to abortion.

Votes from at least four of the court’s nine members are required to grant review.

In other action, the court:

--Agreed to decide an important issue for the nation’s cities and counties--whether zoning laws may be used to relegate “adult” movie theaters to relatively remote areas of the community. Nine years ago, the court issued a landmark decision allowing the city of Detroit to restrict the location of such businesses to preserve the quality of its neighborhoods. Since then, many communities have enacted similar ordinances, but few have been upheld in the lower courts (City of Renton vs. Playtime Theatres, Inc., 84-1360).

Issue of Perjury

--Said it would review an unusual case in which a federal appeals court held that a murder suspect’s right to effective assistance of counsel was violated when his lawyer threatened to withdraw from the trial and testify against him if the defendant committed perjury. Thirty-seven states, not including California, asked the justices to review the case to clarify guidelines for the proper conduct of criminal defense attorneys whose clients intend to lie in court (Nix vs. Whiteside, 84-1321).

--Refused to hear a claim by a former airline pilot that transsexuals are protected under federal job discrimination laws. Karen Ulane, as Kenneth Ulane, had flown combat missions in Vietnam and for 12 years was a pilot for Eastern Airlines. But, after a sex-change operation, she was banned from flight duty and was offered a ground job or disability retirement at $25,200 a year.

Ulane challenged the airline’s action and won a ruling by a federal district judge that she could proceed with the suit. But a federal appeals court in Chicago reversed the ruling, finding that there was no evidence that Congress intended to protect transsexuals in forbidding job discrimination based on sex (Ulane vs. Eastern Airlines, 84-1328).