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Boston Reverse-Discrimination Case May Be Found Moot by High Court

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Washington--The Supreme Court indicated last week that it may decide not to rule on whether a federal district court acted correctly in 1981 when it ordered the city of Boston to lay off hundreds of senior, white firefighters and policemen in order to protect the jobs of recently hired minority employees.

Instead, the Justices hinted during oral arguments in the case that they might declare it moot because all of the city employees who lost their jobs have since been rehired.

Educators and teachers' unions have been watching the case closely because they believe its outcome will affect the status of affirmative-action programs for teachers and similar "last-hired, first-fired" collective-bargaining agreements.

In fact, the Boston Teachers Union asked the Court last June to resolve an almost identical dispute between it and the Boston School Committee, but in October the Court declined without comment to hear that case. The Court surprised observers when it agreed to hear the policemen and firefighters' lawsuit a month after rejecting the teachers' appeal. (See Education Week, Nov. 10, 1982.)

The case heard last week, Boston Firefighters Union v. Boston naacp, dates back to 1971, when a federal district court ruled that Boston's uniformed services were unconstitutionally segregated. The court then ordered the creation of affirmative-action hiring plans to increase the number of minorities in the police and firefighting forces.

In 1981, the city ordered the layoffs of hundreds of policemen and firefighters in order to help balance its budget. Under the terms of a state civil-service statute, those layoffs were to have been carried out in order of least seniority. Black and Hispanic workers who were hired under the affirmative-action plans and would have borne the brunt of the layoff order challenged the legality of the furloughs.

Later that year, U.S. District Judge Andrew Caffrey ruled that the layoffs must not be permitted to threaten the minority-hiring gains achieved over the previous 10 years.

His decision was subsequently upheld by the U.S. Court of Appeals for the First Circuit, and as a result, 83 white policemen and 123 white firefighters who were high on seniority lists temporarily lost their jobs. They were all rehired within a year after the state legislature passed a law protecting the uniformed services from layoffs as a result of financial problems.

Both the firefighters' and policemen's unions and the state of Massachusetts then asked the Court to overturn the lower courts' rulings.

Although the Court agreed to hear the case, several of the justices during last week's hearing repeatedly questioned whether there was anything left for them to decide because all of the laid-off workers were back on the job.

"What sort of case do we have here?" Associate Justice William J. Brennan Jr. asked Thomas A. Barnico, the state's assistant attorney general.

"We have a live case here, your honor," Mr. Barnico responded.

"I ask again, what kind of case do you have here?" Justice Brennan repeated. "Everybody who has been discharged has been reinstated with full seniority, right?"

"Only to the point when they were discharged," Mr. Barnico said.

Associate Justice Sandra Day O'Connor then asked Mr. Barnico whether the district court's order should be interpreted as having a permanent effect. "Yes, that is our reading of it," he said.

John McMahon, the lawyer representing the policemen's and firefighters' unions, added later in the hearing that "the serious issue of back pay" also helped to keep the case alive.

"I submit that in formulating relief, a district court cannot disregard the seniority rights of workers," Mr. McMahon said.

James S. Dittmar, a lawyer for the National Association for the Advancement of Colored People, which is representing the black and Hispanic workers, first argued in favor of declaring the case moot. He then offered arguments in favor of the lower courts' decisions if the justices decided to rule on the merits of the case.

"I believe the order was proper," Mr. Dittmar said. "Race-conscious remedies are appropriate when it has been adjudicated that there has been unconstitutional discrimination."

In other action last week, the Court ruled 5-4 that public employees who complain about their jobs are not protected by the First Amendment right to free speech and can be fired.

The justices, ruling in a case involving an assistant district attorney in New Orleans, said that although the Constitution protects public employees' rights to speak out on matters of public interest, it does not protect their rights to do the same with respect to office policies.

The First Amendment "does not require a public office to be run as a round table for employee complaints over internal office affairs," Associate Justice Byron R. White wrote for the majority.

Associate Justice William J. Brennan, in a dissenting opinion, wrote that the majority's ruling "inevitably will deter public employees from making critical statements about the manner in which government agencies are operated for fear that doing so will provoke their dismissal."

The case is Connick v. Myers.

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