AFFIRMATIVE ACTION. High court acts on promotion bias. Backs formula to move up 1 minority member for every white
Boston — The United States Supreme Court's decision on Wednesday to uphold an Alabama affirmative action plan is a bittersweet victory for those who would outlaw any kind of bias in the workplace. In a 5-to-4 vote, the court backed a 1983 judicial order requiring Alabama to promote black and white state troopers on a one-for-one basis until blacks comprise 25 percent of higher-ranking officers on the force.
Legal observers say the extremely close ruling shows that the justices have not yet reached a clear consensus on how the high court should view affirmative action and numerical formulas as a remedy for biases against minorities.
At the same time, this decision seems to have clear political overtones - rebuking the Reagan administration, as the court has done in the past, for opposing the concept of affirmative action and calling for a neutral or ``color blind'' government policy on hiring and promotions. Wednesday's ruling is also significant because it grapples with promotion rather than hiring practices. In the past, the court has generally favored affirmative-action plans that facilitate the hiring of women and blacks.
It has ruled out, however, programs that result in layoffs of white workers to meet quota requirements in hiring minorities.
Up to now, the justices had not decided on the authority of federal courts to order accelerated promotions where there is evidence of past discrimination by an employer.
Another promotion-related case is pending before the Supreme Court - a California matter that raises the issue of whether a public employer may give preferences to minorities and women in a situation where there is no evidence of past discrimination.
Writing for the court's majority in the Alabama case, Associate Justice William J. Brennan called the Alabama plan a just response to past discrimination by the state.
``The pervasive, systematic, and obstinate discriminatory conduct of the [police] department created a profound need and a firm justification for the race-conscious relief ordered'' by the judge, he said. ``Discrimination at the entry level necessarily precluded blacks from competing for promotions and resulted in a departmental hierarchy dominated exclusively by nonminorities.''
Justice Brennan rejected the Reagan administration's oral argument that a requirement to promote on a one-to-one basis to achieve racial balance is ``excessive,'' ``wholely arbitrary,'' and ``profoundly illegal.''
Administration lawyers had also argued that such numerical formulas are a form of reverse discrimination that violates the Constitution's equal protection guarantees.
But Brennan said that the 25 percent figure is tied directly to the approximate number of blacks in the national workforce.
Associate Justice Sandra Day O'Connor, dissenting, said the federal judge who ordered the plan ``did not consider the available alternatives to a one-for-one promotion quota.''
These alternatives, she explained, would have successfully compelled the Alabama state police to comply with consent decrees for alleviating past discrimination.
Other dissenters were Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Byron R. White. Brennan was joined in the majority by Associate Justices Harry A. Blackmun, Thurgood Marshall, and Lewis F. Powell. Justice John Paul Stevens provided the margin of victory but wrote a separate opinion.