Education

Court Hears Key Affirmative-Action Suits

By Tom Mirga — July 03, 2019 5 min read

Washington

According to lawyers on both sides of the dispute, the cases argued before the U.S. Supreme Court last week were relatively simple, involving the meaning of the “plain language” of a federal law.

The law is Title VII of the Civil Rights Act of 1964, and the issue is whether it permits federal judges to order hiring quotas that have an adverse impact on whites in cases where an employer has been found guilty of discrimination against blacks and other minorities.

And last week, despite the lawyers’ assertions to the contrary, the true intent of Title VII appeared to blur even more following arguments in Local 28 of the Sheet-Metal Workers International Association v. Equal Employment Opportunity Commission (Case No. 84-1656) and Local Number 93, International Association of Firefighters v. City of Cleveland (No. 84-1999). Legal experts say the cases could produce one of the most important civil-rights decisions in years.

“This case is purely one of statutory interpretation,” William Bradford Reynolds, head of the Justice Department’s civil-rights division, told the Justices. “Title VII proscribes all remedial orders that grant preferential, race-conscious treatment to nonvictims” of discrimination.

But O. Peter Sherwood, deputy solicitor general of New York State, countered: “Our position is that Title VII gives broad discretion to courts to order remedies that promise to realistically work, including affirmative race-conscious relief that benefits nonvictims. Anything else is at odds with the plain language of the statute itself.”

Reverse Discrimination

By accepting the cases last fall, the Court agreed for the first time to address directly whether Title VII empowers federal courts to order hiring quotas to remedy past job discrimination, a remedy that critics contend results in “reverse discrimination” against white workers who were never responsible for the biased acts of their employers.

In June 1984, the Court ruled that Title VII does not allow federal judges to modify court-approved consent decrees and set aside bona fide seniority systems to prevent layoffs of recently hired minority workers.

In another related case, the Justices heard arguments earlier this term in a dispute that questions whether the far stronger dictates of the Constitution’s 14th Amendment protect the Jackson, Mich., public schools’ voluntarily adopted policy of laying off senior white teachers to preserve the jobs of black teachers. The Justices are expected to hand down their decision in that case, Wygant v. Jackson Board of Education (No. 84-1340), by July.

History of Bias

The first case argued last week, which involves a New York City sheet-metal workers’ union, has its origins in a Title VII suit filed by the Nixon Administration in 1971. The lawsuit alleged that the union had a long history of preventing nonwhites from entering the trade.

In 1975, a federal district judge ruled in favor of the E.E.O.C. and the minority workers it was representing. The judge first ordered the union to reserve 40 percent of the positions in its apprenticeship program annually for blacks and Hispanics, then later ordered it to attain the goal of 29 percent minority membership by July 1982.

In 1982, officials of New York State, which had entered case on the side of the minority workers, asked the district judge to hold the union in contempt when it became obvious that the union would not meet the goal by the deadline. The judge granted their motion and levied a $15,000 fine against the union.

The union appealed the decision to the U.S. Court of Appeals for the Second Circuit, which voted 2 to 1 to uphold the order. The Justice Department, meanwhile, reversed the position it had taken in 1971 and filed papers with the Supreme Court supporting the union’s argument that court-imposed minority membership goals “undermine rather than foster the central purposes” of Title VII by excluding otherwise qualified whites from the trade.

Cleveland Case

Justice Department officials offered largely identical arguments in papers filed in the Cleveland firefighters case, which began in 1980 when a black firefighters’ group filed suit against the city, alleging discrimination in hiring, promotions, and assignments.

Negotiations between the black group and the city to settle the suit began in late 1981. The result was a compromise settlement that featured the creation of a number of new supervisory positions. The settlement, in turn, formed the basis for a court-approved consent decree that also stipulated percentage goals for minorities in the department’s leadership ranks.

Meanwhile, the firefighters’ union was permitted to intervene in case. The union rank and file, which is largely white, voted overwhelmingly to reject the settlement, but it was approved by a federal district judge over that objection. A divided panel of the U.S. Court of Appeals for the Sixth Circuit upheld the legality of the decree.

Swing Vote

Associate Justice Byron R. White dominated the questioning of the lawyers arguing the cases last week. Justice White wrote the majority opinion in Firefighters Local Union No.17B4 v. Stotts, an affirmative-action lawsuit decided in 1984, and he is considered a swing vote on the issue.

“I hope to demonstrate that the reverse discrimination in this case goes beyond all boundaries, beyond Title VII and beyond what Congress intended,” said Martin R. Gold, the lawyer for the New York sheet-metal workers’ union.

“Many people look at this case and presume that the union must be full of bad people,” Mr. Gold said. “Quite the contrary. As a result of this quota, they must commit even more perverse discrimination. To say that they’re a bunch of bigots, well, that just ignores the facts.”

“It’s important to remember what led to the contempt citation,” countered Mr. Sherwood, the New York deputy solicitor general. “They were held in contempt for not trying particularly hard, not because they did not meet a quota. They were under order to shoot for that 29 percent goal.”

“If the union had obeyed all the orders, could it have achieved the quota or goal or whatever it is that you call it?” Justice White asked him.

“I can’t say,” Mr. Sherwood responded. “But I do know that they’d be further down the road than they are now.”

In the second case, William L. Summers, who represented the Cleveland firefighters’ union, argued that Hubert H. Humphrey, Title VII’s chief sponsor in the Senate, had said on several occasions that the law would not require “quotas or racial balance.”

“Tell me, if Senator Humphrey were alive today, which side do you think he would come down on?” asked Associate Justice Harry A. Blackmun.

“That’s hard to say,” Mr. Summers replied. “I think that if he were still in the Senate, he would try to change the law to make it clear that this bill was to provide make-whole relief only for victims of past discrimination.”

The Court is expected to hand down its decisions in the cases by late spring.

A version of this article appeared in the March 05, 1986 edition of Education Week

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