Court Eases Challenges to ‘Reverse Discrimination’

By Tom Mirga — June 21, 1989 6 min read

Washington--A divided U.S. Supreme Court last week eliminated a major barrier to “reverse discrimination” suits by white workers in education and other fields who are adversely affected by court-approved affirmative-action programs.

In a 5-to-4 ruling, the Court permitted a group of white firefighters in Birmingham, Ala., to mount a legal challenge to a consent decree negotiated between the city and the National Association for the Advancement for Colored People that set goals and timetables for the promotion of blacks to supervisory positions.

A federal district judge had barred the white firefighters’ suit, saying the workers failed to exercise their option to intervene in the case that led to the negotiated settlement between the city and the black workers.

A federal appellate court reversed that decision in December 1987, and by the slimmest majority the High Court affirmed the appeals court’s judgment.

Writing for the majority in Martin v. Wilks (Case No. 88-1614), Chief Justice William H. Rehnquist held that white workers cannot be bound by the terms of an affirmative-action system that they had no hand in shaping.

Such systems, he continued, can be made immune from subsequent reverse-discrimination lawsuits only if all persons who might be harmed by an affirmative-action program are made “parties or privies” to the suit that results in its creation.

“This rule is part of our deep-rooted historical tradition that everyone should have his day in court,” the Chief Justice wrote. “A judgment or decree” between minority workers and their employers “resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.”

Justice Rehnquist--who was joined by Associate Justices Byron H. White, Sandra Day O’Connor, Antonin Scalia, and Anthony M. Kennedy--conceded that it may be “difficult” and “awkward” for minority workers to seek out all white counterparts who might object to an affirmative-action program. But, he added, the logistical problem stems “from the nature of the relief sought.”

“The parties to a lawsuit presumably know better than anyone else the nature and the scope of the relief sought in the action, and at whose expense such relief might be granted,” Justice Rehnquist wrote. “It makes sense, therefore, to place on them a burden of bringing in additional parties where such a step is indicated, rather than placing on potential additional parties a duty to intervene when they acquire knowledge of the lawsuit.”

The majority rejected the city’s and black workers’ argument that the new requirement would discourage voluntary settlements of job-bias claims and would open the floodgates to reverse-discrimination suits.

The breadth of an affirmative-action program, Justice Rehnquist reasoned, “may be at least partially shaped ... to avoid needless clashes with future litigation.”

The Court’s June 12 decision was the third in a series this term in which the Justices have scaled back minority workers’ rights under Title VII of the Civil Rights Act of 1964 and the 14th Amendment’s equal-protection clause.

Last January, the Court struck down a Richmond, Va., program that set aside a predetermined number of city contracts for firms owned by racial and ethnic minorities and women. And earlier this month, the Court restricted the ability of minority workers to use statistics to prove that employers’ policies have the “effect” of discriminating against them.

Writing for the dissent in the Martin case, Associate Justice John Paul Stevens contended that the majority’s opinion would subject employers “who seek to comply with the law by remedying past discrimination to a never-ending stream of litigation and potential liability.”

“It is unfathomable that either Title VII or the equal-protection clause demands such a counter-productive result,” he wrote.

Justice Stevens said the white firefighters’ suit should have been barred because they neglected to use their legal option to intervene in the original case.

"[A] person who can forsee that a lawsuit is likely to have a practical impact on his interests may pay a heavy price if he elects to sit on the sidelines instead of intervening and taking the risk that his legal rights will be impaired,” he wrote.

In other action last week, the Court:

Voted unanimously not to overturn a key 1976 civil-rights ruling that prohibited private schools from refusing to enroll black students.

The decision in Patterson v. McLean Credit Union (No. 87-107) left intact the Court’s ruling 13 years ago in Runyon v. McCrary that Section 1981 of Title 42 of the U.S. Code, a Reconstruction-era civil-rights law, applies to acts of discrimination by private individuals as well as governments. The Court said there was no “special justification” for overruling Runyon.

The Court shocked civil-rights groups last year by saying it would use Patterson as a vehicle for reconsidering the Runyon decision.

The Court did, however, vote 5 to 4 in Patterson to narrow severely the scope of Section 1981.

Justice Kennedy, writing for the majority, said the law protects only the right to make and enforce contracts, and that it “cannot be construed as a general proscription of racial discrimination.”

In a harsh dissent, Justice Brennan said the majority “gives this landmark civil-rights statute a needlessly cramped interpretation.”

“What the Court declines to snatch away with one hand,” he said in reference to the decision to uphold Runyon, “it takes away with the other.”

Ruled 5 to 4 that states and state officials acting in their official capacities cannot be sued for racial discrimination under Section 1983, a related civil-rights law also enacted in the post-Civil War era.

Section 1983 states that any “person” who, under color of law, deprives another person of his rights under the Constitution or other federal laws can be sued for damages.

The case before the Court, Will v. Michigan Department of State Police (No. 87-1207), involves charges that the agency denied an employee a promotion because his brother had been a student activist whose name was placed on a “red list” kept by the agency.

The Court ruled that the employee could not sue for damages because the department is not a “person” within the meaning of Section 1983.

Set tight time limits on the filing of lawsuits that allege discrimination in an employer’s seniority system.

In a 5-to-3 ruling, the Court held that changes in seniority systems must be challenged in court within 300 days of their adoption. The case, Lorance v. American Telephone & Telegraph Co. (No. 87-1428), was filed by three female employees of the company, who were demoted in 1982 as a result of changes in the company’s seniority policies three years earlier.

Declined to review a federal appellate court’s order directing a lower court to hold hearings on whether the method used by the Alabama education department’s disability-determination system to select workers for promotion has the effect of discriminating against blacks.

In papers filed with the Court in Alabama Department of Education v. Powers (No. 88-1619), the state agency argued unsuccessfully that the appellate decision should have been reversed under the terms of the High Court’s ruling this month in Wards Cove Packing Co. v. Atonio. The black workers countered that the decision was not affected by the Wards Cove ruling.

Declined to hear a Fort Worth, Tex., teacher’s argument that he was fired because he had filed a race-bais suit against his school district.

According to papers filed in the case, Henry S. Dooley was transferred from his post as a coach and physical-education teacher and eventually dismissed due to “an alleged tackling incident” involving an 8th-grade football player.

Mr. Dooley alleged that the true reason for his transfer and dismissal was that he had filed an employment-discrimination suit against the district shortly before the incident with the player. Federal district and appeals courts had rejected the teacher’s arguments.

A version of this article appeared in the June 21, 1989 edition of Education Week as Court Eases Challenges to ‘Reverse Discrimination’