Justices Open Affirmative Action Review

The Supreme Court on Wednesday opened its review of the affirmative action cases on its docket that provide a pivotal test of the Reagan Administration’s legal assault on racial preferences in the workplace.

The court heard oral arguments on the reverse-discrimination claim of a group of white teachers in Jackson, Mich., who were laid off to protect the jobs of black teachers with less seniority and to maintain the faculty racial balance.

The Justice Department had filed a “friend of the court” brief supporting the white teachers, saying it was unconstitutional to penalize them with the loss of their jobs when there was no court finding or evidence that the school district had discriminated against minority teachers in the past.

Questions posed by the justices to attorneys in the case seemed to show sharp division over the permissible limits of race-based employment policies.

Valid Seniority Plans

Last year the court, in a 6-3 decision involving firefighters in Memphis, Tenn., barred judges from upsetting valid municipal seniority plans to protect the jobs of less-experienced minorities. But the court has yet to rule on the constitutionality of a voluntary plan by a public employer--such as a school district--that protects minority jobs at the expense of the seniority rights of whites.

Two other test cases on affirmative action--one from Cleveland and one from New York--also are on the court’s calendar for decisions by next summer.

At issue in the Michigan case (Wygant vs. Jackson Board of Education, 84-1340) is the validity of a contract between the school district and a teachers union in 1972 that provided an exception to its “last-hired, first-fired” policy. From then on, the agreement said, at no time would the percentage of minorities laid off exceed the percentage of minorities then employed.

Racial Disparity Cited

The aim was to reduce the disparity between the number of black teachers, who then made up 8% of the faculty, and the number of black pupils, who made up 16% of the student body.

Eight white teachers challenged the plan in court, seeking damages and back pay after they were laid off for periods between six weeks and three years. One was laid off eight times over the years, their attorney said.

In argument before the justices, K. Preston Oade Jr., the lawyer representing the white teachers, said the Constitution would not allow preferential treatment for minorities when there had been no finding that the school district had ever discriminated against minorities.

Justice Thurgood Marshall, the court’s only black member, asked whether it was true that schools in Jackson historically had been segregated and that white teachers had obtained their jobs “solely because of race,” but Oade denied there was any proof of such discrimination.

Challenge to Contract

Later, Marshall sharply questioned the white teachers’ challenge to a union contract that had been overwhelmingly approved by union members.

“This was a carefully negotiated contract, and you want to upset it,” Marshall said. Oade replied: “We want to upset it because it’s unconstitutional and deprives individuals of their constitutional rights.”

Jerome A. Susskind, the attorney representing the school district, defended the agreement and said there would be no purpose in recruiting minority faculty if steps could not be taken to protect them from layoffs.

He said there had been no legal finding of past discrimination by the district--a finding that could be cited to support its remedial affirmative-action plan--because the district had gone ahead and desegregated its system years ago without waiting to be ordered to do so by a court.

But Justices Byron R. White, Lewis F. Powell Jr. and Sandra Day O’Connor repeatedly raised questions about the validity of a plan that favored one race over another without any showing that it was assisting actual victims of discrimination.

As the argument seemed to drift for a moment, Powell suddenly interrupted to return the debate to what he said was the “central issue” in the case: “reverse discrimination against whites.”

Attorney Susskind called the layoff plan a “good-faith effort” to protect minority job gains. “There will come a time when society is truly color blind,” he said. “But this is not the time to move back 20 years. It’s the time to move forward.”