A Solid Yes to Affirmative Action

By Frank Trippett

For the past decade, as the Justices of the Supreme Court have wrestled with the vexing dilemmas of affirmative action, they have produced a string of splintered and often confusing rulings. At first glance, the affirmativeaction decisions handed down last week by the high court seemed only to add to the muddle. The cases, one involving Cleveland fire fighters and the other a New York sheet-metal-workers union, were quite different, and the court's rulings were reached by narrow and shifting majorities, as some Justices agreed with parts of one opinion but not others. However, the twin decisions were resoundingly clear on one essential score: six of the court's nine members emphatically rejected the rationale that the Reagan Administration has been urging as the basis for its all-out assault on racial goals and quotas.

For the past five years, the Reagan Justice Department has argued that the civil rights laws offer relief not to large groups of people but only to specific individuals who can prove that they were victims of racial bias. Hiring goals and timetables -- or, as the Reaganauts prefer to call them, quotas -- are a form of "reverse discrimination" against whites that is "immoral," contends Attorney General Edwin Meese.

But last week the Supreme Court held, for the first time ever, that federal judges may set goals and timetables requiring employers guilty of past discrimination to hire or promote specific numbers of minorities, even if the jobs go to people who are not themselves the proven victims of bias. The rulings, written by Justice William Brennan, add up to a strong endorsement of affirmative action.

"A tremendous and historic victory for civil rights," exulted Ralph Neas, executive director of the Leadership Conference on Civil Rights. "The Supreme Court has repudiated the Meese-Reynolds attempt to gut affirmative action." | Justice officials refused to accept defeat. Meese blithely dismissed the opinions as mere pinpricks upon his policy, insisting, "The court has accepted the general position of this Administration that racial preferences are not a good thing to have. What they have done is carve out various exceptions to that general rule, even while affirming the rule itself." The Assistant Attorney General for Civil Rights, William Bradford Reynolds, who has led the Administration's charge against the perceived reverse discrimination of affirmative action, said there would not be "any change at all" in the Justice Department's enforcement of civil rights.

Such bland dismissals outraged civil rights advocates. William Taylor, director of the Center for National Policy Review, a pro-civil rights group, called Reynolds' statement "another example of his putting himself above the law." Said Taylor: "Nobody can look at these decisions in good conscience and say, 'We don't have to change our legal position.' "

As a practical matter, the court's decisions will undercut Justice Department policy. Last year the department wrote to over 50 jurisdictions, urging them to dismantle or cut back affirmative-action programs for public employees. Now they are effectively free to ignore the feds. Moreover, the court's ruling will almost surely stymie the department's effort to eviscerate federal rules that require many companies with Government contracts to set goals to improve minority hiring.

Both of the court's decisions last week were rooted in drawn-out battles. The New York case involves Local 28 of the Sheet Metal Workers International Association, which has been in and out of court since 1963 because of alleged discriminatory practices. Twice the union has been held in contempt for not obeying lower-court orders aimed at enhancing minority representation. In the latest phase of the case, the union, aided by the Justice Department, was trying to overturn a lower-court order that it work toward the goal of including 29% nonwhites among its membership -- a figure based on the percentage of nonwhites in the local labor pool. A narrow majority of five Justices upheld the lower court's order. Another Justice, Byron White, agreed that while in principle judges have the power to set hiring goals, in this case the 29% target was an impermissible quota.

The Cleveland case involved a challenge by Local 93 of the International Association of Firefighters to an affirmative-action plan that had been agreed on by the city and an organization of black and Hispanic fire fighters called the Vanguards. The Vanguards charged the city with discrimination in hiring, assigning and promoting fire fighters in violation of both Title VII of the Civil Rights Act and the Constitution. Cleveland, which had unsuccessfully litigated similar issues for eight years, agreed to a courtapproved settlement under which the city was required to give half of all promotions to minority fire fighters. The white-dominated union asked the Supreme Court to overturn the consent decree. By a 6-to-3 vote, the Justices ruled that lower-court judges do have broad discretion to approve such consent decrees remedying past discrimination.

"This decision," said Cleveland Mayor George Voinovich, "recognizes that the local governmental agencies need the flexibility to settle complex civil rights litigation short of trial when the settlement is in the best interests of both parties." Still, the sailing for the Cleveland Vanguards might not be all that clear. Promptly after the decision, a lawyer for Local 93, Robert A. Dixon, said the union would return to district court and pursue civil rights actions on behalf of individual nonminority fire fighters.

The Supreme Court did not say last week whether whites who have been passed over by affirmative-action programs can successfully challenge them as reverse discrimination. Nor did it suggest that anybody could be forced to hire unqualified workers. Among many unanswered questions, the court declined to indicate exactly what minorities must do to prove past discrimination. Indeed, the Justices may in future cases require a showing that employers have persistently flouted court orders to improve their hiring practices. The court did set up some general ground rules for affirmative-action plans: they should be limited in duration and not "unnecessarily trammel" the rights of white workers. They must be carefully tailored to remedy the precise type of discrimination in each case and avoid rigid quotas. Those guidelines leave room for considerable argument in the lower courts, and no doubt affirmative- action plans will continue to be challenged by whites with the backing of the Reagan Administration.

Despite the continuing battle over affirmative action, many if not most big businesses have opposed the Administration's efforts to gut existing programs. Some employers, however, have undeniably seized on the Reaganauts' rhetoric to - go slow on affirmative action. "I think that businesses that didn't want to do anything could use the conservative climate as an excuse," said N.A.A.C.P. Executive Director Benjamin Hooks last week. "But now they have no excuse for not going forward."

While hardly settling every issue, the court's action encourages employers to push ahead with affirmative action to cure past discrimination. "It will give us a feeling of not being out there fighting the battle all alone," says O.J. Silas, director of affirmative action for Hennepin County (Minneapolis). "This is the clearest thing I've heard in a long time that the courts do mean what they said and support the principles of affirmative action."

With reporting by Anne Constable/Washington, with other bureaus