Series of Rulings Could Set Fate of Affirmative Action : Court Still Faces 2 Minority Jobs Cases

With one key affirmative action case decided, the Supreme Court now shifts its attention to two other politically charged tests of minority-preference job plans that it must resolve before ending its term in July.

Under review are a special promotion program for black firefighters instituted by the city of Cleveland and a minority-membership quota imposed on a New York sheet metal workers’ union by a federal court.

School Teacher Ruling

The two cases, combined with the court’s ruling Monday in a case involving school teachers in Jackson, Mich., are widely expected to set the legal boundaries for affirmative action in employment for years to come.

And, although in the Michigan case the justices struck down a school district’s plan to protect black teachers from layoffs over whites with more seniority, civil rights lawyers concluded Tuesday that the future still looks promising for minority-preference plans.

“I am optimistic that in these two cases the court will not reject the basic principles of affirmative action,” said William L. Robinson, director of the Lawyers’ Committee for Civil Rights Under Law. “ . . . While we have lost the battle (in the Michigan case), we may have won the war.”

Reagan Stand Brushed Aside

Although there was no single majority opinion in the court’s 5-4 ruling, the justices collectively indicated that carefully drawn, race-conscious job plans still could pass constitutional muster--and they appeared to have brushed aside a contention by the Reagan Administration that only the actual, identifiable victims of discrimination are entitled to preferential treatment.

The Lawyers Committee saw the ruling as also enhancing the legal basis for enforcement of a long-standing executive order, now being attacked by the Justice Department, that requires federal contractors to set numerical hiring goals for minorities.

But the court held also that affirmative action plans cannot be justified merely by “societal discrimination”--but must be designed as a remedy for past discrimination by the governmental employer itself. The court, in upholding the claims of a group of white teachers laid off to protect the jobs of minority members, said further that whites are entitled to constitutional protections against reverse discrimination.

“The court said whites are every bit as protected by the equal protection clause of the Constitution as minorities,” said Bruce E. Fein, a conservative constitutional expert at the American Enterprise Institute for Public Policy Research.

‘Searching Scrutiny’

“It’s clear that the court will look with searching scrutiny at any program that provides racial preferences--no matter whose ox is gored,” he said. “I think this presages decisions in the Cleveland and New York cases that will be adverse to affirmative action programs.”

The two cases involve promotion and hiring--and thus may have greater impact than the Michigan case. Race-based layoff plans among school districts or other public employers are less common than other affirmative action job plans.

In the Cleveland case, white firefighters are challenging a federal court-approved settlement between the city and black firefighters guaranteeing nonwhites half the promotions over a four-year period--even if minority members are promoted over whites with more seniority.

The Reagan Administration, backing the white firefighters, has asked the justices to expand a 1984 ruling they made in a case from Memphis, Tenn., holding that federal civil rights law bars judges from ordering public employers to violate seniority plans to protect minorities.

A extensive coalition of civil rights groups and municipalities--including the city of Los Angeles--is supporting Cleveland in defending the plan.

In the New York case, the Administration is backing the union in contesting a federal court order requiring it to attain 29% minority membership. The order resulted from a court finding that the union had unlawfully excluded minority applicants, preventing them from obtaining jobs as sheet metal workers.

‘Flexible Guideline’

The Administration contends that the court improperly imposed a racial quota on the union. Civil rights groups are supporting the court order--as is the National Assn. of Manufacturers, which says that the quota serves as a legitimate “flexible guideline” to induce employers and unions to increase minority participation in the work force.

Lawyers on both sides of the affirmative action controversy see Justice Sandra Day O’Connor, President Reagan’s sole appointee to the court, as a potentially key vote in the two cases. It was O’Connor who joined the majority to strike down the Michigan plan but who also issued a separate opinion indicating her receptiveness to more carefully drawn programs.

She noted that such programs “need not be limited to the remedying of specific instances of identified discrimination”--an implied rejection of the Administration’s contention that only actual victims of discrimination are entitled to special protections.