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Court Will Hear Affirmative-Action Challenge

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Washington--The U.S. Supreme Court agreed last week to hear a lawsuit challenging the right of lower federal courts to order the city of Memphis to lay off senior white firefighters in order to protect the jobs of recently hired minority workers.

The Court's acceptance came just two weeks after the Justices declined to issue a ruling on a similar lawsuit involving the layoffs of policemen and firefighters in Boston. (See Education Week, May 25, 1983.)

The Court declared the Boston case, Boston Firefighters Union, Local 718 v. Boston naacp, moot because all of the senior white workers who had been laid off were subsequently rehired.

The Court's decision to hear the Memphis case, Memphis Fire Department v. Stotts, took some observers by surprise because all workers affected by the furloughs there have also been rehired.

School officials have been monitoring the Boston case and similar lawsuits involving the layoff of public employees because their outcomes could affect the status of cases involving affirmative-action plans for teachers, administrators, and staff members.

The Memphis case, which will be heard after the Court reconvenes from its summer recess, differs from the Boston case in several important respects, according to observers.

No Similar Statute

Perhaps the most important difference is that the Boston workers were rehired under the terms of a law passed in 1982 by the Massachusetts State Legislature that will prevent them from being laid off again in the future. Tennessee has no similar statute.

Furthermore, in the Memphis case, the U.S. District Court for the Western District of Tennessee ruled that a consent decree entered into in 1980 by the city and the plaintiffs in the case required the city to practice affirmative action in both hiring and layoffs.

That ruling was subsequently upheld by the U.S. Court of Appeals for the Sixth Circuit.

In briefs filed with the Court, the city claimed that there is no language in the consent decree referring to layoffs. "The judicial willingness to modify consent decrees to include provisions not agreed to by the parties" will have "a chilling effect" on the use of such decrees to settle civil-rights disputes in the future, the city argued.

Lawyers for the black firefighters who filed the lawsuit have asked the Court to declare the case moot because all of the firefighters have been rehired.--tm

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