High Court Backs Use of Affirmative Action : After 8 Years, Justices Have a Consensus

After eight years of battle over affirmative action, the Supreme Court appears to have arrived at a hard-won consensus: Employers may give minorities preference in hiring and promotions as long as whites do not suffer in an immediate way, such as losing their jobs.

In past rulings, the court regularly has decided in favor of “race-conscious” job plans that give preferences to blacks and Latinos. But, at the same time, a narrow majority has formed to vote down such plans when “innocent parties”--such as white firefighters in Memphis, Tenn., or white teachers in Jackson, Mich.--have been laid off as a result.

Civil rights lawyers, although jubilant about two decisions Wednesday upholding affirmative action plans, said that the rulings essentially strengthened earlier decisions. In 1979, the court upheld a voluntary plan that gave black steelworkers in Louisiana preference in promotions. And, the next year, the justices approved laws that set aside 10% of federally sponsored public works construction for minority contractors.

Upheld Lower Courts

Although not breaking new ground, the court’s latest rulings clearly rejected the Reagan Administration’s view that any preference for minority members violates the Constitution--a view the Administration had expressed in both cases. In those cases, the justices upheld lower court decisions that said blacks should get half the promotions among Cleveland firefighters and that a New York sheet metal workers’ union should increase its nonwhite membership to 29%.

“These decisions are a reaffirmation of the appropriateness of affirmative action,” Steve Ralston, a lawyer for the NAACP Legal Defense Fund, said. “We have been engaged in a five-year battle with the Administration over this issue, and we feel the civil rights groups have won it.”

“The most immediate impact of the opinions,” William Robinson of the Lawyers Committee for Civil Rights Under the Law said, “will be to lift the cloud from affirmative action that private and public employers have operated under. They have said that employers can agree to race-conscious remedies and courts can uphold those remedies in consent decrees.”

That cloud formed in 1984, when the justices struck down a court order in Memphis that had led to white firefighters’ being laid off to save the jobs of blacks with less seniority.

A few weeks later, Assistant Atty. Gen. William Bradford Reynolds announced that, according to his reading of the decision, the high court had invalidated all affirmative action plans that went beyond aiding “actual victims” of discrimination.

Two Swing Votes

But Justices Lewis F. Powell Jr. and Sandra Day O’Connor, who repeatedly had cast the swing votes in affirmative action cases, have not taken such a hard line on affirmative action.

In 1978, Powell wrote a two-part conclusion that settled the controversial case of Allan Bakke, a qualified white student who had been denied entrance to a University of California medical school.

Powell said that giving preferences to minorities was justified to remedy past discrimination and to bring about “diversity” in universities. At the same, he ordered Bakke admitted to the school because its rigid policy of setting aside 16 openings for minority members kept him from being enrolled.

Last month, Powell again wrote the lead opinion in a 5-4 ruling that struck down a Jackson, Mich., school board plan that had led to the dismissal of white teachers who had more experience than blacks whose jobs were preserved.

Innocents May Suffer

“We have recognized that, in order to remedy the effects of prior discrimination, it may be necessary to take race into account. Innocent persons may be called upon to bear some of the burden of the remedy,” Powell said.

However, he added: “Layoffs impose the entire burden of achieving racial equality on particular individuals who . . . are innocent parties, often resulting in serious disruptions to their lives. That burden is too intrusive.”

O’Connor also voted against the Michigan plan, saying that it “unnecessarily trammels on the rights of innocent individuals.”

In Wednesday’s cases, those two justices joined with the court liberals to uphold the affirmative action plans.

In adding the key fifth vote to uphold the 29% union membership goal in the New York case, Powell said that he was “not entirely free from doubt” as to whether such plans are legal but noted that the union had engaged in “particularly egregious conduct” in screening out blacks. Moreover, he said that “it does not appear that non-minorities will be burdened directly, if at all,” by the recruiting goals.

Racial Quotas Cited

O’Connor dissented in this case, saying that the New York plan was a “rigid racial quota.” But she joined with Powell in the 6-3 judgment in favor of the promotion plan for blacks in Cleveland, calling it a “narrow holding.”

Reynolds, who heads the Justice Department’s civil rights division, admitted that Wednesday’s double defeat was a disappointment but joined O’Connor in saying that the rulings were narrow in scope.

“There’s nothing in these cases that requires the federal government to use preferential treatment,” he said. “It says there may be instances where it may be used. I don’t see any need for us to read into these decisions that the federal government should move away from the principle of non-discrimination” toward members of any racial group.

Reynolds added that the opinions of several justices suggested that they “were not comfortable” with the notion of racial preferences.

But attorneys opposed to Reynold’s campaign to overturn existing affirmative action plans said that the latest decisions will probably bring a halt to his effort.

“I think they’ve now lost in every court where they have floated their theory” that affirmative action can help only actual victims of discrimination, said Benna Ruth Solomon, counsel for the State and Local Legal Center in Washington. “The court has said that affirmative action is a practical way to eradicate past discrimination, and state and local governments can keep the plans that they have in effect.”