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Major Review of Affirmative-Action Plans Faces Justices on Supreme Court Docket

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Washington--The U.S. Supreme Court opened its 1985-86 session last week by setting the stage for a broad re-examination of the standards governing affirmative-action plans in the workplace, including public schools.

The Justices also agreed to hear a case involving students' free-speech rights and turned down requests to review several other school-related lawsuits.

Three cases are expected to provide the Justices with an opportunity to speak definitively on the constitutionality of plans that, as a means of correcting the effects of past discrimination, give preferential treatment to minority workers in employment-related decisions.

The Court on Oct. 7 agreed to hear affirmative-action cases dealing with the Cleveland fire department's promotion policy and with court-ordered membership goals for a sheet-metal workers' union in New York. Earlier this year, the Court agreed to review a case that challenges rules protecting minority teachers in a Michigan school district's layoff policy.

Opposition to race-conscious employment practices designed to make up for past discrimination has been the centerpiece of the Reagan Administration's civil-rights policies. In all three affirmative-action cases accepted by the Court for this term, the Justice Department has filed briefs challenging the programs in question.

The department argues that a 1984 decision by the Court in a case involving the Memphis fire department rendered all such programs a violation of the due-process and equal-protection clauses of the 14th Amendment.

Cleveland, New York Cases

The Cleveland case, Local 93, Firefighters v. City of Cleveland (Case No. 84-1999), stems from a suit by black and Hispanic firefighters who alleged that the city discriminated against them in promotions. In a move that was challenged by the predominantly white firefighters' union, city officials agreed to a settlement that gave all blacks and Hispanics who passed a promotion test preference over similarly qualified whites. A federal district judge approved the settlement, which was also upheld by a divided panel of the U.S. Court of Appeals for the Sixth Circuit.

The New York case, Local 638, Sheet Metal Workers v. Equal Employment Opportunity Commission (No. 84-1656), has its origins in a Title VII suit filed by the Nixon Administration in 1971. The lawsuit alleged that the union had prevented nonwhites from joining. The federal district and appeals courts held for the government and the minority workers named as plaintiffs.

The case now before the Court stems from subsequent findings by the lower federal courts that the union had not complied with a court-ordered goal of 29 percent nonwhite membership. The Justice Department--reversing the position taken by the Nixon Administration--now argues that that court order is illegal because it gives preferences to nonwhite union applicants who have not proven that they were actual victims of discrimination.

The affirmative-action case accepted earlier this year--Wygant v. Jackson Board of Education (No. 84-1340)--has been scheduled for argument on Nov. 6. Wygant involves a Michigan school district's voluntarily adopted policy of laying off white teachers with seniority in order to preserve the jobs of less senior minority teachers.

Student Speech

The Court also agreed last week to hear a lawsuit involving the extent to which the First Amendment protects the rights of students to speak freely in school.

In Bethel School District v. Fraser (No. 84-1667), a federal appeals court last year upheld a lower court's ruling that school officials in Spanaway, Wash., violated a high-school student's rights by suspending him for making off-color remarks in a speech nominating a friend for an office in the student government.

School officials suspended the student for three days for allegedly engaging in disruptive conduct, and removed his name from a list of students eligible to speak at graduation ceremonies. The lower federal courts held that there was insufficient evidence to support a finding that the student's speech seriously disrupted his school's educational program.

Spanaway school officials contend in papers filed with the Court that their authority to maintain and enforce minimum standards of decency will be seriously eroded if the lower-court decisions are allowed to stand.

The Justices last week also turned down requests that they review lower-court decisions in the following school-related cases:

Lutejeharms v. Rose (No. 84-1534), a case stemming from a federal appeals court's decision requiring the Nebraska commissioner of education to pay $9,500 in attorney's fees to the parents of a deaf child. The parents prevailed in their claim that the commissioner's intervention in hearings on their child's educational placement denied her due process of law, thus entitling the parents to payment of legal fees under Sections 1983 and 1988 of the Civil Rights Act of 1871.

Zeiler v. Ohio High School Athletic Association (No. 84-1671), in which parents from southern Michigan challenged Ohio athletic-association rules that prohibit children8who do not reside in the state from participating in extracurricular activities. The parents, who send their children to a Catholic school in Toledo, Ohio, unsuccessfully argued that the rule violated First Amendment guarantees of the right to free exercise of religion and other constitutional provisions extending to all citizens of the United States the same rights and privileges.

Whittaker v. Knapp (No. 84-1824), in which a federal appeals court ruled that a high-school coach's free-speech rights were violated after school administrators disciplined him for complaining to school-board members about pay for coaches.

Torres v. Little Flower Children's Services (No. 84-1842), in which a mildly retarded 17-year-old ward of the state lodged charges of educational malpractice against the New York State Department of Social Services. The plaintiff maintained that the state agency had failed to provide him with special reading instruction and had placed him at age 7 in a public-school classroom where only English was spoken, even though he spoke only Spanish at the time. New York's highest court ruled last year that the suit was barred by a 1979 federal appeals-court ruling that precluded educational-malpractice lawsuits.

Grove v. Mead School District No. 354 (No. 84-1984), in which parents argued unsuccessfully that the use in a high-school class of the novel The Learning Tree--in which characters make disparaging comments about Jesus Christ--represented government establishment of "secular humanism" as a religion in public schools.

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