Hiring programs that favor minorities come under Justice Department attack

The US Justice Department is gearing up for an all-out attack on affirmative-action employment programs that it says discriminate against whites by granting ``preferential treatment'' to blacks, women, and other minorities. But it remains to be seen how many of the 51 affirmative-action plans targeted across the United States will actually be altered in accordance with Justice Department recommendations.

The Justice Department's Civil Rights Division has contacted some 51 cities, towns, and organizations -- mostly fire and police departments -- in the largest-yet government effort aimed at eliminating what Justice Department officials say are unfair racial or other hiring quotas for minorities.

US Attorney General Edwin A. Meese III and William Bradford Reynolds, head of the Civil Rights Division, have repeatedly said the administration is opposed to the use of race or gender-based numerical quotas. Justice officials say such remedies for past discrimination are themselves discriminatory. They contend that the US Constitution's provision that ``all men are created equal'' mandates that the government adopt a ``colorblind'' approach to minority issues.

The department began contacting the 51 jurisdictions -- including the cities of Boston, Chicago, Los Angeles, Miami, Milwaukee, St. Louis, Philadelphia, and others -- as a result of a 1984 Supreme Court decision concerning the Memphis Fire Department. The court ruled that Memphis officials could not negate the fire department's seniority system to protect black firefighters from being laid off. Justice officials have interpreted the Memphis ruling as outlawing the use of quotas based on race or gender in affirmative-action programs.

Justice officials maintain that the decision also forbids persons who are not ``actual victims of discrimination'' from receiving ``preferential treatment'' in affirmative-action programs.

Civil rights lawyers say the Justice Department is using an overly broad interpretation of the Supreme Court's Memphis decision.

They vow that they will fight the Justice Department initiative, charging that the Reagan administration is undermining the civil rights successes of five previous Presidents.

``The administration is doing all it can to jettison these policies,'' says William L. Taylor, former staff director of the US Commission on Civil Rights. ``It really is going to be a battle,'' he says.

``I think affirmative action is very seriously threatened,'' says Burt Neuborne of the American Civil Liberties Union in New York.

He says he is alarmed at ``a general national backing away from the moral underpinning that developed affirmative action in the first place.''

Mr. Neuborne adds: ``That is much more of a threat than Brad Reynolds [of the Civil Rights Division] going around arguing that the Memphis case means something more than it means.''

On Monday, a federal district court judge in Washington ruled that the District of Columbia's fire department had violated the rights of white firefighters by promoting blacks with less seniority above them. The court ordered the city to redraft the fire department's affirmative-action program.

The Justice Department's Mr. Reynolds claimed victory. He said, ``We are . . . heartened by the court's insistence that the city consider alternatives for reformulation of the hiring plan in a manner that is not based on race, sex, or national origin.''

He added, ``We, of course, continue to believe that the Constitution forbids a municipality from making hiring or promotion decisions based on gender or skin color.''

``There is nothing in the opinion that suggests a reason for us to alter that view,'' he said.

But according to a copy of District Court Judge Charles Richey's decision, the judge specifically rejected the Justice Department's argument that the 1984 Supreme Court Memphis decision ``precludes the use of any race-conscious affirmative-action plan.''

``The court must admit that it is not comfortable with racially based distinctions,'' Judge Richey wrote. But he added, citing another case, that ``no decision of [the Supreme] Court has ever adopted the proposition that the Constitution must be colorblind.''

Rather than the Memphis case, the judge based his decision on the so-called ``Weber'' Supreme Court case in 1979 that established that ``race-conscious goals'' such as in an affirmative-action program are acceptable if they meet three tests.

They must be ``specifically designed to break down patterns of racial discrimination''; they must not ``unnecessarily trammel'' the rights of whites; and they must be temporary.

Judge Richey found in the District of Columbia case that the rights of white firefighters were unnecessarily trammeled in regard to promotions within the fire department.

He wrote: ``Black firefighters have . . . worked hard, having to overcome a long history of racial prejudice. However, the fact of past discrimination alone is not enough to deprive innocent whites of their legitimate expectation of advancement.''

But the judge also found that the portion of the fire department's affirmative-action plan that dealt with hiring satisfied the ``minimal requirements'' of US laws.

Richard Seymour, an attorney with the Lawyers Committee for Civil Rights Under the Law, says, ``The judge's decision expressly says that the Justice Department is wrong.''

He says the Justice Department became involved in the District of Columbia suit and is pressing for 51 other suits in an effort ``to have another opportunity to persuade a court that they are correct'' in their view about affirmative action.

``The courts in this country are going to be inundated with the same Justice Department position parroted over and over again,'' he says.

``This will not slow the Justice Department down one bit,'' says Barry Goldstein, with the NAACP Legal Defense and Educational Fund Inc., of the District of Columbia case. ``They will go full speed ahead, no matter how many cases they lose.''