High court limits affirmative action, but on narrow grounds

Discrimination by society as a whole against certain groups -- rather than specific acts of bias against individuals -- is insufficient to justify a remedy of affirmative action in the workplace. So indicated United States Supreme Court Associate Justice Lewis F. Powell in writing for the majority in a 5 to 4 decision Monday.

This ruling must be considered a blow to longtime affirmative-action programs across the US. But despite predictions to the contrary, the justices have not unraveled the concept of affirmative action, at least not so far.

In fact, in striking down a Jackson, Mich., plan to protect the jobs of black schoolteachers at the expense of whites with more seniority, the Supreme Court stopped well short of a sweeping decision that could have rung the death knell for all such race-conscious remedies for discrimination.

The high tribunal has two other affirmative-action cases to decide before the end of its term in July. One involves firefighters in Cleveland; the other involves union-member sheet-metal workers in New York City.

Taken together, these three decisions could clearly indicate the future for affirmative action. The position of the Reagan administration and its Justice Department is that affirmative action should benefit only those individuals who can prove they are victims of discrimination -- rather than entire classes of people such as blacks or Mexican-Americans. The White House also opposes numerical goals or quotas to remedy past bias.

Civil libertarians warn that if the Supreme Court limits relief only to specific victims, affirmative action will, in effect, be rendered powerless as a weapon against discrimination.

Bert Neubourne, a Supreme Court specialist for the American Civil Liberties Union (ACLU), was predictably disappointed over the Jackson ruling. But he said the Michigan scenario was ``the worst possible case'' from a civil rights standpoint. ``It involved layoffs of innocent white workers where there was no evidence of past discrimination,'' Mr. Neubourne explained.

The ACLU spokesman predicted that affirmative action would remain intact in the two coming decisions.

In the Michigan ruling, Justice Powell made it clear that proved instances of previous discrimination have to be shown in order to justify a plan that gives racial minorities special employment advantages.

``This court has never held that societal discrimination alone is sufficient to justify a racial classification,'' Powell wrote. ``Rather, the court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination. . . .''

In dissent, Associate Justice Thurgood Marshall wrote that ``a public employer . . . should be permitted to preserve the benefits of a legitimate and constitutional affirmative-action hiring plan, even while reducing its work force.''

The Jackson directive resulted in the layoffs of white teachers. The court seemed to believe that mandatory dismissals impose greater injustice on furloughed individuals than affirmative-action programs that address hiring and promotion policies.

``While hiring goals impose a diffuse burden,'' Powell wrote, ``layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives.''

In the Cleveland case, a federal judge decreed that 50 percent of all fire department promotions must go to qualified minorities. In New York, a federal appeals court ordered the sheet-metal workers union substantially to increase its nonwhite membership by August 1987.

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