Washington. -- One should never make too much of the U.S. Supreme Court's refusal to hear a case, since it has many from which to choose and many reasons not to choose any one of them.
But, when the Supremes handed victories to white men last week by deciding not to hear appeals of two race-based affirmative-action cases, the temptation to make a big deal out of it proved overwhelming for both sides.
It was "a complete victory for the white male plaintiffs," said their lawyer. On the other side, "this puts a question mark of confusion over this whole field of law," said Richard T. Seymour of the Lawyers Committee for Civil Rights Under Law in Washington.
Indeed, it does, and not just for lawyers. The court let stand two so-called "reverse discrimination" verdicts from lower courts. One threw out a quota for promotions of black firefighters in Birmingham, Alabama. In the other case, a Pittsburgh jury had awarded a white engineer $425,000 in damages because he was passed over for promotion by a less-educated and less-experienced black man.
In the current politically superheated atmosphere surrounding the issue of affirmative action, a victory for so-called "reverse discrimination" leaves employers and others wondering what to do. Many who want to do the right thing must be asking LTC themselves, "What is the right thing?"
The Lawyers Committee, the Justice Department and the NAACP had sued the City of Birmingham in 1974, alleging the city continued to exclude blacks from management ranks in its fire and police departments. These are the same police and fire ** departments the nation remembers turning dogs and fire hoses on men, women and children protesting against racial segregation in the early 1960s.
The court action resulted in a 1981 consent decree that called for, among other provisions, the promotion of one black firefighter for every two available promotions. Supporters of the plan argued that the quota accelerated the city's efforts to reach its goals. A federal court approved, and most of the goals were reached by 1989.
But last year a U.S. Court of Appeals struck down the plan as a "rigid quota" that was too broadly fashioned. "Race-neutral alternatives should be considered first," the Atlanta court said.
In the other case, Frederick Claus, the white engineer, who had a degree in electrical engineering and 29 years of experience at the company, complained that he was passed over for a promotion at Duquesne Light Co. by a black man who did not have a bachelor's degree or the required seven years of experience.
Once there was a time when the courts were more willing to recognize that long-tenured white men like Mr. Claus were automatically advantaged by their skin color in a racist society, whether they acknowledged it or not. That day is fading fast. Suddenly the famous line from Finley Peter Dunne's "Mr. Dooley" comes to mind: The Supreme Court always reads the election returns.
Probably so. The high court appears to be quite willing to let the local courts do the fine tuning on current law, while the political candidates take the issue to the people.
That's OK for the court, but employers need guidance. In general, the courts are saying that affirmative action is permissible, but it should not be taken to extremes. That's fair. But, what's "extreme"?
A few years ago there was broad agreement that Birmingham's extreme abuses of blacks called for extreme remedies.
There was a belief that a company like Duquesne Light Co. could decide for itself whether flexible merit standards were OK in seeking bright minorities for the sake of diversity in management. But what about the closer calls employers must decide every day? It is not enough to tell employers to be "color-blind" or "gender-blind." Most of us would be inclined, consciously or subconsciously, to hire and promote in our own image. We tend to view "merit" as "people who look like me."
Affirmative action, properly tailored, requires employers to at least consider minority and female applicants seriously. It also encourages minorities and women to believe they have a fair chance, that they have the law as a wind at their backs, not in front.
Unfortunately, with the federal Equal Employment Opportunity Commission already experiencing a two-year backlog of complaints, the politics of the moment could go farther than "reverse discrimination" and turn basic fairness into wind. A big bag of it.
Clarence Page is a syndicated columnist.