|
Volume 5 Number 1
SUPREME COURT RULING SUPPORTIVE OF AFFIRMATIVE ACTION
In the first of three affirmative action Supreme Court opinions expected this term, the Court indicated its approval of affirmative action, including hiring goals, to remedy discrimination. While invalidating a particular provision of an affirmative action agreement involving layoffs, the ruling (Wygant v. Jackson Board of Education) rejected the Justice Department's position that affirmative action benefit only proven victims of discrimination, and that goals therefore are not permissible.
The issues before the Court were whether a judicial finding of discrimination was a prerequisite for the adoption of a voluntary affirmative action plan, and whether the particular plan in this case was constitutionally permissible. In dispute was a formula contained in the bargaining contract between the Jackson, Michigan Teachers Association and the school board on how teachers were to be laid off during economically stringent times. The formula provided for the use of seniority in layoffs "except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of layoff." While the Court (5-4) rejected the side-stepping of seniority, seven members expressed support for hiring goals. The nine Justices wrote 5 opinions, no one of which commanded a majority. Justice Powell wrote for himself and Justices Burger and Rehnquist:
We... hold that, as a means of accomplishing purposes that otherwise may be legitimate, the Board's layoff plan is not sufficiently narrowly tailored. Other, less intrusive means of accomplishing similar purposes ... such as the adoption of 'airing goals ' are available. For these reasons, the Board's selection of layoffs as the means to accomplish even a valid purpose cannot satisfy the demands of the Equal Protection Clause.
Further, Justice Sandra Day O'Connor in a separate concurring opinion wrote:
The Court is in agreement that, whatever the formulation employed, remedying past or present racial discrimination by a state actor is a sufficiently weighty state interest to warrant the remedial use of a carefully constructed affirmative action program.
Her opinion continues:
It appears, then that the true source of disagreement on the Court lies not so much in defining the state interests which may support affirmative action efforts as in defining the degree to which the means employed must "fit" the ends pursued to meet constitutional standards... Yet even here the Court has forged a degree of unanimity; it is agreed that a plan need not be limited to remedying of specific instances of identified discrimination for it to be deemed sufficiently "narrowly tailored," or "substantially related" to the correction of prior discrimination by the state actor.
Justice O'Connor's opinion was viewed positively by civil rights advocates as she is likely to be a pivotal vote in future cases. Richard Larson of the ACLU was quoted predicting victory in the two other affirmative action cases before the Court "if O'Connor is to be read literally" (Wash. Post, May 20, 1986, A10).
The Supreme Court's decisions in the other affirmative action cases will be reviewed in the next MONITOR, Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479 (Gth Cir. 1985), cert. granted, 54 U.S.L.W. 3191 (U.S. Oct. 7, 1985) (No. 84-1999); and Local 638 v. Equal Employment Opportunity Commission, 753 F.2d 1172 Und Cir. 1985), cert. granted, 54 U.S.L.W. 3191 (U.S. Oct. 7, 1985) (No. 84-1656). For a comprehensive review of the three cases, see the December 1985 MONITOR.
  
| 
