SUPREME COURT REBUFFS JUSTICE DEPARTMENT ON AFFIRMATIVE ACTION
In two cases decided July 2, 1986, the Supreme Court rejected the Department of Justice's central position on affirmative action, namely, that only identifiable victims of discrimination can benefit from affirmative action. In repudiating the DOJ position, the Court strongly endorsed the use of racial goals in remedying past employment discrimination. Thus, employers found to have engaged in discrimination can be required to establish goals and timetables to increase the representation of minorities. The Justice Departments position would require an employer found guilty of discrimination only to promise to end the discrimination, and to hire any proven identifiable victims of the discrimination. The Department would also bar the use of goals and timetables, even when voluntarily agreed to in a consent decree. The decisions were widely viewed as a major defeat for Attorney General Edwin Meese and Assistant Attorney General William Bradford Reynolds who over the last five and a half years have been doggedly committed to the proposition that the Constitution prohibits the use of race conscious remedies such as goals and timetables.
In Local Number 21, _International Association of Firefighters, v. City of Cleveland, 54 U.S.L.W. 5005 (1986)(No. 84-1999), the Court's 6-3 vote upheld a consent decree proposed by the city and the Vanguards, an association of black and Hispanic firefighters, which included goals for the promotion of minority firefighters. The opinion reads in part:
We have on numerous occasions recognized that Congress intended for voluntary compliance to be the preferred means of achieving the objectives of Title VII [which prohibits employment discrimination] ... It is equally clear that the voluntary action available to employers and unions seeking to eradicate race discrimination may include reasonable race-conscious relief that benefits individuals who we-,-e not actual victims of discrimination ... [As we concluded in Weber] it would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had been excluded from the American dream for so long constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.
In
Local 28, Sheet Metal Workers' International Association v. Equal Employment Opportunity Commission, 54 U.S.L.W. 4984 (1986)(No. 84-1656), the Court upheld 5-4 a court order requiring a New York sheet metal workers local to institute a minority membership goal of 29 percent to be achieved by July 31, 1987, and to establish a training fund to increase nonwhite membership in the apprenticeship program and ultimately in the union. The opinion states:
Petitioners, joined by the Solicitor General, argue that the membership goal, the Fund order, and other orders which require petitioners to grant membership preferences to nonwhites are expressly prohibited by 706(g) ... which defines the remedies available under Title VII. Petitioners and the Solicitor General maintain that 706(g) authorizes a district court to award preferential relief only to the actual victims of unlawful discrimination. They maintain that the membership goal and the Fund violate this provision, since they require petitioners to admit to membership, and otherwise to extend benefits to black and Hispanic individuals who are not the identified victims of unlawful discrimination. We reject this argument, and hold that 706(g) does not prohibit a court from ordering, in appropriate circumstances, affirmative raceÓconscious relief as a remedy for past discrimination. Specifically, we hold that such relief may be appropriate where an employer or a labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination.
Reaction to the decisions ...
Civil rights leaders hailed the decisions as a major victory. Benjamin L. Hooks, Executive Director of the NAACP and Chair of the Leadership Conference on Civil Rights, described the decisions as a "great victory," and a "significant, rebuke to the Reagan administration's pernicious efforts to destroy affirmative action" (Wash. Post, July 3, 1986, All). Some business leaders also expressed strong support for the rulings. William McEwen, Director of Equal Opportunity Affairs for the Monsanto Company, and spokesperson for the National Association of Manufactures discussed the importance of affirmative action as upheld by the court:
We have been utilizing affirmative action plans for over 20 years. We were brought into it kicking and screaming, but over the past 20 years, we've learned that there's a reservoir of talent out there, of minorities and women, that we hadn't been using before. We've had to practice better management. The byproduct of affirmative action is, it makes us treat all people better. We found that it works ... I cringe to think what would have happened [if the court had ruled differently] ... It's very, very difficult to identify those people who are victims of discriminatory acts (Wash Post, July 3, 1986).
The Justice Department, while grudgingly admitting defeat, asserted that the Court had accepted "the general position that racial preferences are not a good thing to have." Attorney General Edwin Meese added that "what they have done is carved out various exceptions to that general rule, even while affirming the rule itself." Assistant Attorney General Reynolds even asserted that the decisions would not alter his efforts to eliminate the goals and timetables requirements of Executive Order 11246 which requires federal contractors to take positive steps including goals and timetables to bring women and minorities into their workforce. (Reynolds and Meese have been trying since August 1985 to eliminate this component of the Order. Secretary of Labor Brock, whose Department administers the Executive Order program, has waged a fight to retain the present Order. A Labor Department spokesperson was quoted as saying the rulings clearly supported the legal basis for goals, but the Administration's policy debate over goals would continue.)
Ralph Neas, Executive Director of the Leadership Conference on Civil Rights said Meese and Reynolds were engaged in "blatant misrepresentation. Their interpretations are just Orwellian. The Supreme Court has repudiated the MeeseÓReynolds attempt to gut affirmative action."
The immediate impact. . .
Clarence Thomas, Chair of the Equal Employment Opportunity Commission, facing opposition from Senate civil rights proponents to his renomination, did all about-face on his agency's position on goals and timetables. In testimony before the Senate Labor and Human Resources Committee, he admitted that in light of the Supreme Court decisions EEOC's directive not to use goals and timetables was incorrect. He pledged to instruct EEOC attorneys "to seek goals and timetables and raceÓand sexÓconscious remedies permissible under the ruling of the Supreme Court." Thomas admitted that he still has personal reservations about using such remedies, but acknowledged that the Court's acceptance of them "is the law of the land."
While Meese and Reynolds continued to portray the decisions as "limited defeats," the DOJ has begun "quietly dropping" some of the lawsuits it filed last year against more than 50 state and local governments to force revision of affirmative action consent decrees which require goals and timetables. Suits have been dropped in Indianapolis and Chicago. Assistant Attorney General Reynolds embarked on his anti-goals and timetables campaign in 1984 asserting that the Stotts case, 104 S.Ct. 2576, (1984), which addressed the issue of layoffs, applied to hirings and promotions as well. The Court had ruled only that a bonaÓfide seniority system takes precedence over an affirmative action plan which does not address the issue of layoffs.
A Reynolds assistant stated before an American Bar Association meeting in August that the Department's challenges to some of the decrees were withdrawn because the Supreme Court in Vanguards held such plans acceptable. DOJ's original attempt to overturn those plans was "premised upon a view of the law that the Court tells us is not correct" the Deputy Assistant Attorney General admitted (Wash Post, Aug. 13, 1986).
For a comprehensive description of the three affirmative action cases addressed by the Court this year, see the December 1985 CIVIL RIGHTS MONITOR. For a discussion of the decision in Wygant v. Jackson Board of Education, see the June 1986 CIVIL RIGHTS MONITOR.
