Court shuns affirmative action case


WASHINGTON -- The new spotlight on affirmative action flashed briefly on the Supreme Court yesterday, but the justices found it easy to step aside for the time being as they move toward a major ruling in coming weeks.

In a brief order, the court chose not to review a promotion plan for black firefighters that ended six years ago. White firefighters who felt they had to wait too long for promotions got the plan overturned in a lower court, an action that probably means they now will get back pay.

The case from Birmingham, Ala., was the first of its kind to reach the court since a renewed political controversy began surrounding affirmative action in recent weeks. Leaders of the Republican Congress, GOP presidential candidates and President Clinton have all questioned the need for public programs that make preferences based on race or sex.

The court has said little on affirmative action in the past five years, and two appeals in the Birmingham case were an attempt to draw the court back to the center of the issue. But the court, more cautious these days about what cases it takes on, apparently saw too little of significance in the case to spend time on it.

The justices will get into the midst of the issue again by early summer with a ruling that could curb the federal government's constitutional authority to adopt racial and gender preferences. Awaiting decision is a challenge to a federal highway program that favors minority-owned contracting companies.

As constitutional law now stands, state and local governments have less power to adopt affirmative action plans than the federal government does. The coming ruling could change that.

In yesterday's order, the justices offered no explanation for rejecting outright the pleas for new guidance on how far state and local government may go in using race as a factor in employment decisions.

The Birmingham dispute has been in the courts for 20 years, beginning with blacks' claims of racial bias in city jobs, especially in the fire and police departments. After an affirmative action plan took effect, white firefighters claimed reverse racial discrimination.

The plan was adopted in a 1981 settlement of lawsuits against the city by blacks and the Justice Department. Under the settlement, a 50-50, black-white promotion plan was put in place, aimed primarily at assuring black firefighters a chance to advance to the rank of lieutenant.

Before that time, Birmingham had never had a black firefighter with the rank of lieutenant. The Fire Department hired its first black -- an entry-level firefighter -- in 1968. It waited four more years before hiring a second. In that four-year interval, it hired 147 whites.

As a long-term goal, the affirmative action plan sought to give preference to blacks until the Fire Department became 28 percent black -- equal to the percentage in the work force in the surrounding county.

Blacks were to get 50 percent of the annual promotions to lieutenant, until the overall 28 percent goal for lieutenants was reached. That goal was reached six years ago, and the 50-50 arrangement expired then.

The first black lieutenant was named under the plan in 1982, leading to a lawsuit by white firefighters, who said they feared they would be passed over under the 50-50 arrangement. Ultimately, all but one of the whites were promoted, but they claimed the delay amounted to an added legal affront.

A federal appeals court in May agreed with the white firefighters' challenge. It struck down the 1981 settlement.

Black firefighters and city officials in Birmingham urged the Supreme Court to reinstate the plan, but their appeals apparently met a tepid reaction among the justices.

In another order, the court agreed to decide an issue emerging from lawsuits based on the deaths of 169 passengers and crew members of a Korean Air Lines flight in 1983. The plane was shot down by Soviet jets after straying into Soviet airspace.

International airline crashes are covered by a 1929 treaty. The issue the court said it would decide was whether the treaty allows survivors to receive damages for the emotional loss of a relative.

The U.S. mother and sister of a dead passenger were among survivors who sued the airline. A jury awarded them $375,000 in damages; most of that was wiped out on appeal.

A ruling by the court is expected next year.

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