COLUMN ONE : Battling to Climb the Ladder : On a fire department roster in Alabama, the debate over reverse discrimination is framed in very personal terms that could change legal history.

Listen to the two men even briefly, and the similarities between Robert (Kenny) Wilks and Jackie Barton are apparent: Both graduated from Birmingham high schools in 1967, Wilks the son of a steelworker, Barton of a railroad man. Both now are Birmingham firefighters, one 40, the other 41. Both work out of Fire Station 10 in Avondale, 20 blocks due east of downtown.

The differences between the two men, however, are even more apparent. Wilks is white, Barton black. Wilks joined the fire department the year after he completed high school, while Barton waited 10 years, the fire department not being an available option for blacks in 1967.

Wilks remembers the Birmingham of his youth as a “well-rounded community, the type of place you’d want to grow up in.” Barton recalls it as a city he could barely enter, with one black movie theater and no good jobs.

Wilks watched Police Commissioner Eugene (Bull) Connor and the violent 1963 Birmingham demonstrations on television, thinking it all “a bunch of bull, a bunch of hell-raising.” Barton watched the clashes from the streets, throwing rocks at the firetrucks and dodging the charging dogs.

There is one other difference between the two men, a difference revealed by a look at the roster that hangs from a wall in the office at Fire Station 10. There, both of their names are listed at the top in red, for they each are officers, but Barton’s has a star beside it. He is the station’s captain. Wilks is his lieutenant.

Wilks will not even look at that roster, with its blunt star an ever-present taunt. Every year in which he’s taken the civil service exam for promotion, Wilks has ranked high--eighth one year, third another, then ninth. One of those years, Barton ranked 86th. Barton is Wilks’ boss only because of a consent decree and an affirmative action plan the city embraced in 1981.

One day in the uncertain future, Wilks hopes to alter this circumstance. Barton rode the results of a job discrimination lawsuit to his position, and Wilks means to do the same. He’s part of the way there already. Last June, in the case titled Martin vs. Wilks, the U.S. Supreme Court opened the door to a lawsuit filed by Wilks and other white firefighters. The justices said their charge--that Birmingham has discriminated against whites by implementing its 1981 consent decree--should have its day in court.

“The Civil Rights Act passed 25 years ago, and a whole generation has come up since then,” Wilks said. “Where’s affirmative action going to end? I say end it now. My kids shouldn’t have to pay for it. There’s got to be an end. Sooner or later you pay a car off. There’s got to be a stopping point somewhere.”

“I didn’t invent it,” Barton countered. “I just happen to be in this place at this point in time. Just as I was there throwing rocks in 1963. Now I’m a fire captain.”

Resentment Grows

The situation in Birmingham’s Fire Station 10 is anything but aberrant. Over the past 15 years, affirmative action plans have wrought considerable changes in the workplace, helping a good number of women and minorities gain a foothold in the middle class. But they also have bred an abiding and deepening resentment among the white males who have been displaced.

That resentment, gaining shape and force throughout the 1980s, encouraged by the Ronald Reagan Administration’s policies and judicial appointments, now represents a full-fledged countermarch. The Supreme Court’s decision in the Birmingham case has already triggered a number of other such reverse discrimination lawsuits, for Martin vs. Wilks all but invited them.

Boston, for example, presently faces three--one each from firefighter applicants, police applicants and policemen seeking promotions. San Francisco faces four--from firemen, policemen and two teacher organizations. UC Berkeley faces a federal investigation into charges of discrimination against whites in its admissions policies.

In courtrooms across the country during the 1990s, juries and judges will find themselves wrestling with questions energetically addressed more than a decade ago but not--it is becoming increasingly apparent--fully resolved. Are affirmative action plans still appropriate a quarter of a century after passage of the Civil Rights Act of 1964? Should there, in the 1990s, be equality of access and opportunity, or of final status? How is minority preference not reverse discrimination? How are goals not quotas?

High Court Watched

Beyond such cases the experts see even more sweeping litigation on the horizon. A decade ago, when the Supreme Court in United Steelworkers vs. Weber ruled that Title VII of the Civil Rights Act does not prohibit voluntary affirmative action plans, Justice William J. Brennan Jr. wrote the opinion for a narrow five-judge majority, and Justice William H. Rehnquist drafted the caustic dissent. Now Rehnquist is the chief justice and has a majority on his side. There are those who believe the Supreme Court in time will declare all affirmative action plans--public or private, voluntary or court-ordered--to be unconstitutional violations of Title VII’s ban against job discrimination.

“I fear that the Supreme Court will narrow Weber, and if they narrow Weber, you can throw out affirmative action,” said Charles Craver, a professor at George Washington University Law Center who teaches a course on the law of employment discrimination. “I think the pervasive feeling now among the populace and professional people is that the biggest discrimination is against white males. White students see scholarships all going to minorities. They see minorities being flown all over this country, being wooed by graduate schools and employers. You don’t see any whites getting this treatment. Clearly there is some reverse discrimination now. It is very difficult to have legitimate, official discrimination and then not have some backlash.”

The momentum on the legal battlefield has certainly shifted. That much can be seen simply by watching and listening to those involved in the Birmingham battles.

The lawyer for the white firefighters, Raymond Fitzpatrick Jr., can barely suppress a gleam in his eyes as he reminisces about his case’s genesis and watches his clients offer practiced political analysis to TV cameras. By contrast, one of the lawyers for the black firefighters, Susan Reeves--who 15 years ago filed the lawsuits that led to the now-disputed consent decree--bites off her words bitterly, resentful at being put on the defensive.

“How do you feel sitting here in Birmingham investigating discrimination against whites?” she demanded of one visiting national television reporter after he had shut down his camera.

It is Birmingham city officials, though, who are left in the greatest disarray by the present turn of events. They have been squeezed hard, caught between two swings of a pendulum. A decade ago, they were being sued for discriminating against blacks, so they agreed to an affirmative action plan pressed on them by the Justice Department. Now, for implementing that consent decree, they’re being sued for discriminating against whites. And once again the Justice Department is against them.

There is no better place to observe this turnabout than in the disheveled office of the lawyer who represents the city, James P. Alexander, a partner at the distinguished Birmingham law firm of Bradley, Arant, Rose & White.

Alexander is a prototypal management labor lawyer, and his firm is among the largest and most traditionally conservative in the state, so he is accustomed to representing companies charged with job discrimination against blacks. Now--somewhat to his own wonder--he defends those same clients against similar complaints lodged by whites.

“The rules have changed,” he observed one recent morning. “And they’re going to change some more. There’s a change in the sense of what’s fair. There’s a change in the sense of what’s in the interest of the country.”

Among other things, a look at the Birmingham experience provides revealing glimpses at how and why this has happened.

Birmingham was not founded until 1872, and then it was by carpetbaggers, drawn to the region because its iron, limestone and coal provided a rare locale where all the ingredients were available to make steel. Segregation was sustained by outside owners to keep labor peace in what soon became a lucrative industrial center.

The change--and predicament--for Birmingham began not long after Bull Connor stood in the street beside Kelly Ingram Park in May, 1963, directing fire hoses and dogs against young black demonstrators. Those images helped set the stage for the Civil Rights Act and its Title VII job discrimination ban, which in turn provided the basis for a barrage of lawsuits against Birmingham-area employers.

“It is difficult to think of a major Birmingham industrial firm not on the receiving end of one of these cases,” Alexander said. “The plaintiffs were winning. We distributed money to the plaintiffs. We had to--this was a hotbed of employment discrimination.”

For this reason, the three lawsuits filed against public authorities in 1974 and 1975 by a handful of blacks, the National Assn. for the Advancement of Colored People and the Department of Justice were regarded as just another brush fire to extinguish. A settlement seemed inevitable.

Until 1958, after all, announcements for the city’s public-service jobs limited applicants to “whites only.” The Birmingham Fire Department did not hire its first black until 1968 and didn’t hire its second until 1974. There were no black supervisors of any sort until 1982--not surprising because black applicants for promotion needed favorable evaluations from white supervisors and faced a seniority policy that added one point to the test scores for each year in the department.

Those setting about to remedy these conditions soon faced a critical fork in the road: They could try to cure the root causes--among them the fact that only 24% of the black applicants even passed the test, compared to 82% of the whites--or they could simply change the final results. That they chose the latter course had something to do with who made the final decisions. Lawyers, not social planners or philosophers, fashioned Birmingham’s affirmative action plan.

Hiring Goals Set

The black firefighters’ lawsuits were their impetus. Liability for damages and back pay was looming. The Justice Department was urging the city to settle. The matter had to be resolved, and in a fashion that yielded measurable results in the foreseeable future.

So, in the spring of 1981, after a year and a half of negotiation, the lawyers forged two consent decrees that tied long-term hiring goals directly to the ratio of blacks in the Jefferson County civilian labor force--28% in 1980. To reach that level, the city temporarily would give blacks half of each year’s available jobs and promotions, drawing from a supplemental list of black candidates provided by the Jefferson County personnel board. The personnel board would compile this list by certifying additional eligible candidates, on the basis of race, beyond the top three it usually provided for each job opening.

In other words, the backbone of the Birmingham consent decrees, quite simply and without disguise, was a race-conscious plan to favor blacks with lower scores over whites with higher scores.

In this intent, and in their wording and numerical goals, Birmingham’s consent decrees were not particularly unusual. Just two years before, in fact, the Supreme Court had endorsed a plan with similar provisions in the Weber case.

“The decree was bread and butter, plain vanilla, consistent with what was going on then,” Alexander said much later, sounding close to bewilderment. “We didn’t think we were doing anything dramatic. The relief was within the parameters of existing case law.”

More Black Officers

The consent decrees certainly had their intended effect. Between March, 1982 and 1989, the number of black firefighters climbed from 47 to 118, the number of black lieutenants from zero to 28, the number of captains from zero to nine. The first black battalion chief was named. Black firefighters in 1982 made up 10% of the department; they now form almost 24%. There were no black lieutenants and captains in 1982; they now make up 28% of the department.

Such a swift change altered lives considerably, particularly for middle-aged black men such as Barton, Carl Cook and Tony Jackson. They had grown up in Birmingham never imagining they would be firemen, and now they were department supervisors, directing the efforts of hundreds of men. During the mid- and late 1980s, Cook became a lieutenant, Barton a captain, Jackson the battalion chief. Such a turn of events was, for them, stunning.

“When I was growing up,” Cook recalled recently, “if you went to the store and tried to buy pork chops, the man would say, ‘What you need that? Neck bones OK for you.’ It was unreal but it was very real. . . . In 1963, I remember being washed down Fourth Avenue by Bull Connor’s fire hoses. They told us to just fall down and protect ourselves, but my parents were scared that if you got caught, they’d bomb your house, so I’d run. You couldn’t fight the hose, but it could wash you down the street only so far. I was fortunate to never get bitten by the dogs. I was fast then; I got up and flew.”

Jackson mainly heard of Connor’s fire hoses at church. “That’s how we knew everything,” he said. “The church was the information center. We were always there, hearing what was going on. . . . Life then was frightening--you had to guard against so much--but I don’t remember really being taunted or jeered by whites. That’s because we were so separated. We were not part of that world.”

When Cook graduated from high school in 1964, he knew the fire department wasn’t an available option, but he tried anyway.

“I knew no blacks had been accepted there, but I didn’t know why,” he said. “Had any even applied? I went over to the downtown employment office on Eighth Avenue. ‘I’d like to be a firefighter if you have any openings,’ I said. They looked at me real odd and said there were no openings. I thought maybe there wasn’t an opening. Or maybe it wasn’t the right time. In those days, we accepted our situation. I had a family after all. Your parents were always telling you your actions could bring down problems for the family.”

Three years later, when he graduated in 1967, Barton didn’t even try to apply. Nor did Jackson in 1969. “I never imagined that,” Jackson said. “What I expected was to become a steelworker or a miner . . . or move north.”

In time, Cook found work doing manual labor at a Birmingham industrial plant. Barton joined the Air Force and became a military firefighter, roaming through Thailand, South Korea and the Philippines. Jackson earned an associate of arts degree in management-supervision training at a local junior college, but he ended up working on the line at an assembly plant that made utility trucks.

During the 1974 recession, Jackson’s luck turned particularly bad. Just after he married and bought a house, he was laid off. He spent the next year taking odd jobs--chauffeur, bartender, groundskeeper, custodian, parking valet--”anything I could find, anything and everything to keep my house and car.”

Then, that same year, Birmingham was hit with the initial lawsuit charging racial discrimination, and suddenly the black men’s fortunes improved. Cook again applied to the fire department and this time he was hired, one of five that first year. A year later, Jackson landed an assistant’s job in the city’s engineering department. In 1977, he became a fireman, as did Barton, who left the Air Force after eyeing the new opportunities back home.

‘Different Ways of Life’

Once hired, Cook, Barton and Jackson found themselves working alongside whites who had grown up in a Birmingham far different from the one they had inhabited as boys. For men like Wilks and Charles Brush, black colleagues were a new experience.

Brush--who serves with Wilks in Fire Station 10 and is president of the local firefighters union--had never even attended school with blacks. “It was all white then,” he recalled. “That was just the way things were.”

Wilks’ high school wasn’t integrated until 1964, and when it finally happened, he didn’t like it. “I felt it was forced upon us,” he recalled later. “I knew blacks--we swam at the same swimming hole, we’d run them out, or they’d run us out--but we had different ways of life. They had their way of life, I had mine.”

Wilks had joined the fire department in February, 1968, Brush in 1972. Watching the first blacks arrive, Brush recalls some “irritation” among his colleagues but nothing stronger. He was already a lieutenant, after all, when Barton was hired in 1977.

“Some of the blacks wouldn’t tell us their test scores,” Brush said. “Some said they’d never took the test. But in the late ‘70s, there really was no big problem. The big rub was when they came out with the consent decree. We understood there’d be some hiring of minorities, but promotions were never discussed. . . . When you get into promotions, you’re talking about leaders of people.”

The matter of promotions was indeed a more incendiary issue than new hires. It was also more complicated.

Although the consent decrees required that half of the new lieutenants be black, there were only a few blacks from which to choose--just the handful who had been hired since the first lawsuit in 1974, who by 1982 composed 10% of the department. Such disproportionate ratios made for considerable strain.

When Jackson took the lieutenant’s test in 1982, he ranked 60th on the combined score--which included test results and seniority points--but the city needed to pick the four highest-ranked blacks, so he became a lieutenant. Wilks, who ranked eighth overall, did not.

In 1983, the city took the two whites who ranked first and second, then passed over 76 other whites to promote the blacks who had ranked 80th, 83rd and 85th. Cook, the black ranked 85th, became a lieutenant. Wilks, ranked third this time, still did not.

A year later, Barton, ranked 86th among all applicants, became a lieutenant. Wilks, ranked ninth, again did not.

Promotions Criticized

In 1986, Wilks finally made lieutenant, but by then the blacks were climbing higher. Jackson became a captain in 1983, as did Barton in October, 1988. When Jackson made battalion chief in July, 1987, he ranked 15th out of sixteen applicants.

This sequence of events understandably has provoked objections. Those who are displeased above all criticize what they consider the city’s exceptionally stark and rapid manner of implementing affirmative action.

“A better alternative would have been to do this, but not go as fast,” Brush said. “You can’t raise the education level of a class of people in a few short years.”

“Could we have been less intrusive?” countered Alexander, the city’s attorney. “What you’re really asking is, could we have done it over 30 years instead of six. Well, sure, yes we could have. . . . But then you wouldn’t have dealt with the problem for two generations.”

To some extent, judgments about how Birmingham implemented its affirmative action plan depend on the importance assigned to the firefighters’ scores on the written tests. Some people value the tests and frankly believe that the blacks aren’t capable or disciplined enough to study for them. Others, however, suggest that the tests are a white man’s game, skewed toward those who write and administer them. And more than a few argue that pencil-and-paper tests are not, in any event, the best way to evaluate firefighters.

They ask: Why not measure ability to lead or act, not memorize? Why not put people in situations and see how they react? How about a test for bravery? For reaction time in moments of crisis? For ability to follow orders? For ability to lead? For quickness?

As it happens, such a notion provides common ground for some blacks and whites otherwise pitted against each other. The white firefighters, after all, would rather have a new test than a system that ignores test results entirely.

“We are not wedded to the current paper test,” Brush said. “It’s up to the city to choose. But then apply the results evenly.”

That call for equity, however, is not so easy to provide. Pleas such as Brush’s eventually focus attention on the irksome difficulty at the heart of affirmative action plans--their unavoidable trade-offs. Results are never applied evenly--whatever the juggling with tests and labor ratios, the minorities are supposed to prevail. In the pursuit of equity there is a loss of equity. Some gain, some lose.

In Birmingham, as elsewhere, the losers in this equation simply are no longer inclined to accept their fate without a fight.

‘Ironic’ Grouping

That Wilks and Brush presently toil in Fire Station 10, reporting to Barton, is a circumstance they find utterly galling. It does not help that Wilks was the station’s ranking officer, an acting captain, until Barton’s arrival a year ago.

Although the three men rarely work side by side--they rotate 24-hour shifts every third day--Wilks thinks the trio’s grouping “kind of ironic,” and not at all accidental. Wilks, after all, is point man on a reverse discrimination lawsuit, Brush is the union president, and Barton heads the Birmingham Brothers Assn., a splinter group established by black firefighters when they realized their union dues were paying for the white firefighters’ lawyer.

One day recently, Wilks screwed his thumb into his palm by way of describing what he believed someone higher up is doing to them.

“I don’t like it,” he said. “But I do my job.”

Then he leaned forward in his chair, reached for the cover page of the fire department’s application form and stared at it.

“Nowhere on this is there a line to indicate race,” he said. “It’s not a part of it. There’s no box for race. Where is it?”

Putting down the application form, he lifted first one, then another, of the textbooks he had studied for so many hours.

“Used to be, you took the test and those who did best got picked,” he continued. “That’s the way it used to be. That’s the way it should be. .

Brush, arriving at the station soon after, added his thoughts:

“Hell, it’s not fair, not right to give jobs or promotions on the basis of skin color. We didn’t discriminate against anyone. Don’t hang it on us. We weren’t the ones who put up the ‘no blacks apply’ signs. I want to shake these people and say, ‘So you are going to do it to me, discriminate against me on the basis of race, and now it’s all right?’ It wasn’t then and it isn’t now. . . . I really believe the American people have had enough of the idea that everyone should have the same quality car and food. If there was a referendum in this country, you couldn’t get approval for quotas. And you couldn’t get it through Congress. No way. It would be suicide for a politician to propose a system like ours here in Birmingham. People have had enough. I know I have.”

The blacks do not, by and large, respond with equal fervor. Their more laconic comments provide a reminder of just who has prevailed.

“In all wars there are casualties,” Cook said, shrugging. “Not everyone comes out clear. Those people, they’re casualties of war.”

“It’s not totally fair, but was it fair that I couldn’t be a fireman back in the ‘60s?” Jackson said. “If there had been black firemen in 1962, there wouldn’t have been a consent decree in the first place.”

As the talk about fairness builds, Cook likes to invoke a story concerning the First Alabama Bank:

“Your daddy goes there, robs that bank. Then he buys a house on a hill with the stolen money. Buys Mom a mink, you a Jaguar. The FBI arrives, wants to take Dad, his house, the mink, the Jaguar. You say, ‘No sir, not fair. I didn’t rob the bank. I want to keep the car.’ Point is, all these things you have is a result of what happened before, something that wasn’t right. When it’s time to pay the piper, now it’s unfair. Well, if you want, let’s start out zero-zero. Not you 30 points ahead.”

Listening to the conflicting viewpoints, it is clear that somewhere in the past 20 years, these blacks and whites have swapped visions of Birmingham. Where Wilks complains of rising crime and expresses nostalgia for a vanished city, Cook now talks warmly of his hometown.

“Birmingham has changed greatly, for the better,” Cook said. “It’s a city to be proud to live in now. You can buy pork chops. You can be someone. It was important to blacks for Doug Williams to be in the Super Bowl. Blacks can be Doug Williams. Or Bo Jackson, who’s from our neighborhood. And now they can be Lieutenant Cook. They can aspire to this. Back then, we had no one to aspire to. That’s important. You can say to yourself now (that) if I work hard, I can be like this person. That’s important.”

If this transformation is the triumph of affirmative action, however, it is also, to some, reason for its cessation. It’s precisely because of improved conditions that even a few of those committed to the spirit of the consent decrees now express reservations about the need for them in the future.

“It is essential for the welfare of a city that all people have a chance to do well,” said David Vann, the progressive Democratic mayor of Birmingham from 1975 to 1979. “But there may be a time when affirmative action is no longer an appropriate remedy. . . . That time may be coming close.”

In coming months, the relative merits of all the various arguments will be tested both in Congress and the courts.

Civil rights organizations and their major congressional allies soon will introduce legislation that will try to reverse Martin vs. Wilks and two other recent Supreme Court decisions related to affirmative action. And in the Birmingham federal courthouse, lawyers one day this year again will rise to argue whether it is legal to favor minorities over whites.

In these forums, more than a few of the experts expect the pendulum to continue swinging, however slowly, away from the notion of affirmative action.

“We will see a flood of reverse discrimination cases now, but they won’t win,” said Craver, the George Washington University law professor. “Only if they narrow Weber will they win. Three or four years from now that’s possible. . . . I think the nation is growing increasingly divided. Positions are hardening.”

Certainly that is so in Birmingham, where matters promise to grow only more complicated. With 28% of the fire department’s lieutenants now black, the city has met the consent decrees’ short-term goals, so the special juggling of the promotion rankings will soon end, regardless of court action. That means the certification lists once again will probably be all white, because the black firefighters’ scores on the written tests and limited seniority alone haven’t qualified any of them for a promotion. And such all-white lists, in turn, will most likely trigger renewed legal action by blacks.

“I anticipate seeing both reverse discrimination and traditional discrimination suits at the same time,” a beleaguered Alexander predicted one recent morning. “We are on the horns of a dilemma. All we know is that whatever we do, the losing side is going to sue us. There is no reason to settle. Everybody’s got a side. It’s a sad affair. We’re back at the same old stalemate. We’re still bumping heads. This might never end.”