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Justices Hear Memphis Case On Reverse Discrimination

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Washington--The federal government's top lawyer told the U.S. Supreme Court last week that federal judges cannot order local governments to preserve the jobs of recently hired blacks by laying off whites with more seniority.

Only those black workers who can prove that they were the victims of discriminatory hiring practices should be entitled to such preferential treatment, Solicitor General Rex E. Lee told the Court during oral arguments in a pair of cases involving the Memphis fire department.

The cases, Firefighters Local Union No. 1784 v. Stotts (Case No. 82-206) and Memphis Fire Department v. Stotts (No. 82-229), are being watched closely by schools boards and teachers' organizations around the country. Their outcome could affect the status of so-called "last-hired, first-fired" state statutes and collective-bargaining agreements, as well as court-ordered and voluntary faculty-desegregation arrangements.

The Memphis case stems from a federal district judge's May 1981 order prohibiting the city from laying off black firefighters in order to help balance its budget.

The city had planned to implement the furloughs on the basis of seniority in accordance with a longstanding agreement with the firefighters' union. That agreement was contested by black firefighters, who asked the district judge to hand down an injunction barring their layoffs.

The district judge agreed, and justified his order, which was upheld by the U.S. Court of Appeals for the Sixth Circuit, by citing a 1980 consent decree that obligated the city to increase the level of black representation in the fire department to reflect the proportion of black workers in the metropolitan area. The consent decree, however, did not address the issue of affirmative action in layoffs.

The Court has never handed down a ruling in a case weighing the goal of affirmative action against workers' seniority rights when layoffs of public employees are concerned.

It had an opportunity to do so in a case last year involving the Boston police and fire departments, but it declared the issue moot because all of the laid-off employees had been rehired. (See Education Week, May 25, 1983.)

The Justices hinted last week that they may declare the Stotts cases moot as well because, as in Boston, all employees laid off or demoted have been recalled to their original jobs. Furthermore, the Memphis fire department has since hired dozens of new employees.

"Why isn't this case moot?" Associate Justice William J. Brennan Jr. asked Allen S. Blair, the lawyer for the firefighters' union.

Mr. Blair responded that the case should be decided not only because of the "serious issues of back pay and promotions," but also because the issue "is capable of repetition."

"From a practical standpoint, Memphis is at the peak of its ability to raise property and sales taxes," Mr. Blair said. Noting that an unanticipated financial crisis prompted the layoffs in 1981, he explained that another budget crunch would result in the same situation.

Mr. Blair also said the Court should determine whether the federal district judge had the authority to modify a voluntary consent decree in order to impose affirmative-action obligations not agreed to by any parties to the settlement.

If the district judge's order is not overturned, he said, "the outcome will seriously discourage negotiated Title VII employment-discrimination settlements in the future."

"The defect in this court's order is that it granted constructive, competitive seniority to persons who have not proven that they were discriminated against," said the Reagan Administration's lawyer, Mr. Lee, in defense of the city and union's positions. "An award of this nature ... sends the bill to innocent co-workers."

Richard B. Fields, the lawyer for the black plaintiffs in the case, first advised the Court to send the case back to the lower courts for a determination of mootness.

But, he added, if the Court decided otherwise, it should uphold the lower court's orders because they "simply effectuated the purpose of the consent decree" by forbidding layoffs based solely on seniority.

"The district court did not abuse its discretion," Mr. Fields said. "The consent decree presented a continuing remedial obligation."

The Court is not expected to hand down its decision in the cases until next spring.

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