Court Rejects Reverse Bias in Calif. Case : Fire Dept. Promoted Black With Lower Score Over White

From Associated Press

The Supreme Court today rejected "reverse discrimination" arguments by a white Vallejo, Calif., firefighter denied a promotion that went to a black man with a slightly lower test score.

The court, without comment, let stand a ruling that upheld the black man's promotion to help achieve better racial balance within the city Fire Department.

The U.S. 9th Circuit Court of Appeals ruled that the promotion was lawful.

Vallejo's "plan concerning the promotion of qualified minority employees is a minimally intrusive means to achieve racial balance and is thus a narrowly tailored remedy" for past discrimination, the appeals court said.

"The city's plan provides for consideration of race only insofar as the merit principle can be preserved, making it a moderate and gradual remedy," the 9th Circuit court added.

The city in 1983 denied a promotion to Patrick Higgins, who is white, to firefighter-engineer. The job instead went to Errol Cooley, who is black.

Higgins achieved the top score, 94.17, on a competitive examination for the job. Cooley's score was 93.09. Both men were beginning-level firefighters in Vallejo.

City officials stressed the need for better racial balance in the department. Vallejo has a minority population of 40%, including 18.75% black.

Only three of the city's 80 firefighters, 3.8%, were black when Cooley was promoted.

Precedent a Sexual Issue

The 9th Circuit court, in upholding the promotion, relied heavily on a 1987 Supreme Court ruling that upheld the promotion of a woman who scored slightly lower than a male candidate for a county transportation job in California.

The appeals court said Cooley's promotion "satisfies even the most rigorous equal protection requirements" of the Constitution.

In another action today, the court agreed to take a fresh look at how far cities may go to limit sexually oriented businesses.

The court will study a Dallas zoning and licensing ordinance challenged by owners of adult bookstores, motion picture theaters, nightclubs, motels and nude-model studios.

The challengers say the law violates their freedom of expression.

Last week, the high court ruled in an Indiana case that states may use anti-racketeering laws to crack down on pornography. But in that case the court also ruled that businesses dealing with sexually explicit materials may not be shut down before a judicial determination that at least some of the materials are obscene.

The 1986 Dallas ordinance requires that sexually oriented businesses be at least 1,000 feet apart and at least 1,000 feet from any church, school, residential area or park.

Any existing business in violation of the regulation has three years to move or shut down.

The businesses also are required to obtain a license issued by the chief of police, and must permit inspection of their premises during operating hours.

Also, the ordinance bars anyone convicted of a variety of crimes, such as promotion of prostitution, from operating a sexually oriented business.

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