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CRS Report for Congress 
Affirmative Action Revisited: A Review of Recent Supreme Court Actions

Charles V. Dale
Legislative Attorney
American Law Division

May 18, 1987

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AFFIRMATIVE ACTION REVISITED: A REVIEW OF RECENT SUPREME COURT ACTIONS

	In five cases decided over the last two terms, the Supreme Court has considered the legality of affirmative action to promote equal employment opportunity. In Wygant v. Jackson Board of Education, 106 S.Ct. 26 (1986), a sharply divided Court declared unconstitutional a racial preference in the collective bargaining agreement between a local school board and its teachers’ union that protected minority teachers from layoffs at the expense of more senior white faculty members. Concluding the 1985-86 term, it decided two other “reverse discrimination” cases, Local 28 Sheet Metal Workers v. EEOC, 106 S.Ct. 3019 (1986), and Firefighters v. City of Cleveland, 106 S.Ct. 3063 (1986), which affirmed the legality of court-ordered minority hiring or union membership “goals” and voluntary racial preferences for promotion under Title VII of the 1964 Civil Rights Act. Then, in complementary decisions this past term, the Justices approved of affirmative action by public employers to increase promotional opportunities for women and minorities, whether undertaken as a voluntary measure or pursuant to court decree. United States v. Paradise, 107 S.Ct. 1053 (1987); Johnson v. Transportation Agency, 107 S.Ct. 1442 (1987).

	In Wygant, although holding the specific layoff preference unconstitutional, all nine Justices seemed to agree in principle that a governmental employer is not prohibited by the Equal Protection Clause from all race conscious affirmative action to remedy its own past discrimination. The actual extent of this consensus in principle remains obscure, however, after the Paradise Court split 5 to 4 on the constitutionality of the promotional quota ordered by the district court in that case. However, it appears from the remaining cases that a firm majority of six Justices agree that Title VII does not, in all circumstances, condemn the use by employers or the courts of racial or sexual preferences, even where they benefit individuals who are not actual victims of past discrimination.

BACKGROUND

	At the heart of the affirmative action controversy is a dual theory of remedy in discrimination cases. The first emphasizes compensation for the actual victims of an employer's past discrimination while the second, although not unrelated, focuses more upon the elimination of barriers to equal opportunity for all members of a previously excluded class. The Justice Department has argued in a number of recent cases that victim compensation is the only proper remedial objective and that affirmative action remedies which benefit women and minorities who are not themselves actual victims of an employer's discrimination are illegal. With the Court's rulings this year and last, however, the Department's position appears to have been laid to rest.

	Basically, the Supreme Court's affirmative action jurisprudence is marked by two concurrent but not altogether coterminous lines of decision. The first concerns the validity of judicially imposed affirmative action for proven violations of Title VII of the 1964 Civil Rights Act and the Constitution. The other has involved the legality of voluntary affirmative action by public and private employers, and others. The fundamental principle that has emerged from both is that the remediation of past discrimination is a sufficiently “compelling” or “important” governmental interest to justify the use of racial or sex preferences, at least in “narrowly tailored” circumstances. Just how narrowly or widely available, however, has yet to be fully answered.

	As for judicial affirmative action remedies, even before the Supreme Court had acted, all eleven U.S. Circuit Courts of Appeals had, in cases dating back to the very inception of Title VII, approved the remedial use of race or sex quotas, at least where “historic,” “egregious,” or "longstanding" discrimination was involved. This line of judicial authority was ratified by the Supreme Court in rulings the last two terms. Local 28, Sheetmetal Workers v- EEOC (supra) involved contempt proceedings against a union with an established history of racial and ethnic discrimination for willfully flouting the terms of a judicially imposed affirmative action plan requiring a 29% minority union membership goal. To remedy the union's years of contemptuous evasion of its legal obligations, the district court reinstated the minority membership goal and ordered, in addition, that job referrals be made on the basis of one apprentice for every four journeymen, all of which was affirmed by the Second Circuit. The Supreme Court affirmed, 5 to 4.

	Justice Brennan wrote for a plurality of four Justices that Title VII does not preclude race conscious affirmative action as a “last resort” in cases of “persistent or egregious” discrimination, or to dissipate the “Lingering effects of pervasive discrimination,” but that, in most cases, only “make whole” relief for individual victims is required. Moreover, the plurality felt that by twice adjusting the union's deadline, and its “otherwise flexible application of the membership goal" as a “temporary measure,” the district court had enforced it as a benchmark” of the union's compliance “rather than as a strict racial quota.” Rounding out the five Justice majority for affirmance was Justice Powell who emphasized the history of “contemptuous racial discrimination” revealed by the record, and the temporary and flexible nature of the prescribed remedy. In separate dissents, Justices White and O'Connor found the referral quota excessive because economic conditions in the construction industry made compliance impracticable, while then Chief Justice Burger and Rehnquist read Title VII to bar all judicially ordered race conscious relief benefitting nonvictims.

	A somewhat parallel situation was presented by United States v. Paradise, this term, involving the constitutionality of temporary promotional quotas for Alabama State troopers. In 1972, as a remedy for systematic exclusion of blacks from the ranks of state troopers for nearly four decades, the district court imposed a hiring quota and required the state to refrain from discrimination in promotions. Due to lack of progress in promotions — no blacks in the upper ranks by 1979 -- the court later approved a series of consent decrees which required the adoption of new nondiscriminatory promotion procedures. In the interim, however, the court ordered a 1 for 1 racial quota for the rank of corporal and above, provided sufficient qualified blacks were available, until 25% of each rank was black. Only one round of promotions for corporal was made before the quota for that and the sergeant rank was suspended. The U.S. Supreme Court granted review of the order under the Equal Protection Clause.

	Justice Brennan, whose plurality opinion was again joined by Justices Marshall, Blackmun, and Powell, considered several factors in determining whether the plan violated the equal protection rights of white troopers: the necessity of the relief and the efficacy of alternative remedies, the plan's flexibility and duration, the relationship between the plan's numerical goals and the labor market, and the impact the plan had on the rights of third parties. Significant was the fact that the order did not require the promotion of anyone and could be waived in the absence of qualified minority candidates, as it already had been with respect to Lieutenant and captain positions. It was also tied to the percentage of minorities in the area workforce (252). Moreover, because it did not bar white advancement, but merely postponed it, the plan did not impose unacceptable burdens on innocent third parties. Accordingly, Justice Brennan concluded that the promotion quota was “narrowly tailored” and justified by the government's “compelling” interest in eradicating the state's “pervasive, systematic, and obstinate exclusion” of blacks and its consistent history of resistance to the court's orders. Justice Stevens, who provided the fifth vote for the Court's judgment, stated in a separate opinion that the district court did not exceed the bounds of “reasonableness” in devising a remedy.

	Justice O'Connor, joined in dissent by Justice Scalia and the Chief Justice, found the plan “cannot survive strict scrutiny” because the one-for- one promotion quota is not sufficiently tied to the percentage of blacks eligible for promotion. Finally, Justice White, in a two sentence dissent, said simply that the district court “exceeded its equitable powers.”

	Somewhat less adherence to strict remediation theory to justify race or sex conscious preferences may be discernible, however, where voluntary affirmative action by public or private employers is involved. In its first affirmative action ruling, Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Court struck down, 5 to 4, the minority admissions program of a state medical school that reserved 16 of 100 positions for minority applicants. Justice Powell, who provided the crucial fifth vote, rejected the admissions quota as a remedy for mere “societal discrimination” in the absence of formalized judicial or administrative findings of past discrimination by the institution itself. Alternatively, an educational admissions policy could take race into account as “one” but not the “sole” or determinative factor to promote student diversity and academic freedom. The next case to reach the High Court, United Steelworker v. Weber, 443 U.S. 193 (1979), upheld a voluntary affirmative action plan by a private employer which included a minority quota for a craft training program to remedy “manifest racial imbalance in traditionally segregated job categories.” While the Court required no specific finding of past discrimination by the employer, the case was decided against the backdrop of an historically well established record of trade union bias. Then, in Fullilove v. Klutznick, 448 U.S. 448 (1980), where Congress’ power to enact minority preferences was at issue, the opinions of the six Justice majority all relied upon one formulation or another of Congress' constitutional authority to remedy past discrimination.

	The remediation theory of affirmative action was perhaps most thoroughly explored by the Court in its ruling last term in Wygant v. Jackson Board of Education. The collective bargaining agreement between the school board and the teachers’ union in that case provided for a preference for minority teachers with protection from layoff until the percentage of minorities on the faculty mirrored that of the student body in the school system as a whole. Seniority was to govern layoffs except that the number of minorities laid off was not to exceed the percentage employed in the system at the time. Ten white teachers who were laid off while less senior minority teachers were retained filed a reverse discrimination action under the Equal Protection Clause. The Supreme Court, by a 5 to 4 vote, held the minority layoff provisions unconstitutional although no majority was garnered for any particular point of view.

	Seven members of the Wygant Court agreed that, if a local government had itself discriminated against minorities in the past, some kinds of voluntary affirmative action were permissible. The plurality opinion of Justice Powell applied his strict scrutiny test from Bakke: the “limited use of racial classification” must be justified by the “compelling” purpose of remedying “prior discrimination by the governmental unit involved,” and “narrowly tailored” to that goal. Neither the board's asserted interest in the presence of minority teachers as critical “role models” or to ameliorate “societal discrimination” was sufficient without “convincing” evidence of the board's own past discrimination. Moreover, while innocent nonminorities may be made to share some of the burden, the remedy must not be too intrusive upon their rights. Thus, because preferential protection from layoffs “impose[d] the entire burden of achieving racial equality on particular individuals,” it placed too heavy a burden on innocent whites, and was distinguishable from preferential hiring decisions which “diffuse” the burden more generally. While reserving judgment on the hiring issue, Justice White concurred that the layoff remedy went too far because it displaced more senior white employees in favor of minorities who were not actual discrimination victims. In her separate concurrence, Justice O'Connor aligned herself with the Powell view that societal discrimination will not justify voluntary affirmative action remedies and that the layoff plan here was infirm because overbroad and not “narrowly tailored” to the board's past discrimination.

	The Justices sparred over what evidence would suffice to support an informal conclusion that one had discriminated in the past. The plurality opinion suggested “sufficient,” “convincing,” and “strong” evidence as benchmarks, while Justice O'Connor considered a “firm basis” enough. None of the Justice seemed to require those who would implement voluntary affirmative action to make “formal findings” that they had discriminated in the past. Justice O'Connor and three of the dissenters (Marshall, J., joined by Brennan and Blackmun, JJ.) noted that such a requirement would chill voluntary efforts to end race discrimination and purge its effects. Only Justice Stevens, in a separate dissent, said he would not have asked whether the plan was justified “as a remedy for sins that were committed in the past,” but rather whether, by preserving “an integrated faculty,” it served valuable educational ends that “could not be provided by an all white ... faculty.”

	A possible departure from this apparent emphasis on the remediation of past discrimination as justification for voluntary affirmative action may be found in Johnson v- Transportation Agency, 107 S.Ct. 1442 (1987). The Court there ruled that a county did not violate Title VII when it considered sex among other factors in promoting a woman under a voluntary affirmative action plan. Although the plan was designed to increase women and minorities in jobs where they had traditionally been underrepresented, rather than to remedy past discriminatory practices, the Court applied Weber to uphold the plan as a remedy for “manifest imbalance” in a “traditionally segregated job category.”

	In 1978, the county agency had adopted a voluntary affirmative action plan that permitted consideration of the sex of a candidate for promotion within traditionally segregated job categories. Women were significantly underrepresented in the county's labor force as a whole and in five of seven job categories, including skilled crafts where all 238 employees were men. The plan's long range goal was proportional representation but, because of the small number of positions and low turnover, actual implementation was based on short term goals which were adjusted annually and took account of qualified minority and female availability. No specific numerical goals or quotas were used. The male respondent had been one of seven candidates for promotion to road dispatcher who had been passed over in favor of a female county employee with a marginally lower overall qualification rating. The agency head testified that he had based his final selection on the “whole picture,” including affirmative action concerns. The district court, however, found that sex was the “determinative factor” and invalidated the plan under Weber for lack of an express termination date. The Ninth Circuit reversed and upheld the plan. The Supreme Court affirmed by a vote of 6 to 3.

	In his majority opinion, Justice Brennan decided that Title VII was not coextensive with the Constitution and that, therefore, Weber, not Wygant, was controlling. In recognizing the need for voluntary employer action to “break down old patterns of racial segregation and hierarchy,” said Justice Brennan, Weber adopted a “manifest imbalance” standard that was different from the Title VII standard for proof of a “prima facie” case of discrimination. To require the employer to compile evidence that could lead to a reverse discrimination lawsuit would only be a disincentive to voluntary compliance favored by the statute. Accordingly, to justify voluntary affirmative action, the employer may rely on statistics that demonstrate a “disparity” between its minority and female workforce participation when compared to the general county labor force. To rectify the obvious pattern of female underrepresentation presented by this case, Justice Brennan emphasized, the county had established both long and short range goals that took account of the “practicalities,” including the availability of jobs and qualified female candidates, rather than having adhered to “blind hiring by the numbers.” Therefore, Justice Brennan concluded that because sex was “but one of numerous factors” in the promotion equation, and no qualified candidates were excluded nor unqualified advanced, there was no Title VII violation.

	Justice Stevens concurred that the plan was consistent with Weber and Justice O'Connor, in a separate concurrence, provided a sixth vote for the judgment. In her opinion, however, to support a voluntary affirmative action plan, there should be “a statistical disparity sufficient to support a prima facie claim under Title VII by the employee beneficiaries of the affirmative action plan of a pattern or practice claim of discrimination.” Equal Protection standards, not Title VII, should govern public employer cases, she said, and she chided the majority approach for giving too little guidance as to the requisite statistical imbalance standard. But because there were no women in skilled craft positions, and sex was only a “plus” factor, either standard was satisfied here.

	Justice White, dissenting, would have overruled Weber as a “perversion” of Title VII as would have Justice Scalia, joined by the Chief Justice and Justice White, in a separate dissent. The dissenters criticized the majority for using Title VII “to overcome the effect not of the employer's own discrimination, but of societal attitudes that have limited entry of certain races, or of a particular sex, into certain jobs.” Noting the district court finding of no past discrimination by the county agency, they argued in light of Sheetmetal Workers that “there is no sensible basis for construing Title VII to permit employers to engage in race- or sex- conscious employment practices that courts would be forbidden from ordering them to engage in following a judicial finding of discrimination.”

CONCLUSION

	Predictions are always “risky business" when it comes to court-watching and are further complicated here by the highly fragmented nature of the Court's  most recent affirmative action rulings. Nonetheless, both supporters of affirmative action and its foes may find some comfort in the decisions this term and last. First, whether as a voluntary policy or compelled by court order, it appears that, if certain conditions are met, an employer or labor union may adopt affirmative action remedies that benefit women or minority persons who are not identified as specific victims of past discrimination. A federal court may order affirmative action only where the employer or union has engaged in “persistent” or “egregious” discrimination or where necessary to dissipate the “lingering effects” of pervasive discrimination. In other words, such relief is a remedy of last resort and is to be used only where other available remedies, i.e., injunctions and make-whole relief for identifiable victims, do not promise full and effective relief.

	A reduced emphasis on classic remediation theory, or the need to show past discrimination, is apparent where voluntary affirmative action remedies are at issue, at least in the private employment context or where a statutory challenge is involved. Less certain, however, is what must be shown, statistically or otherwise, to sustain the constitutionality of voluntary affirmative action by a public employer, that is, to satisfy Justice Powell's “convincing evidence” or Justice O'Connor's “firm basis" standard in the Wygant case. Note that the Johnson case specifically avoided the issue by not addressing the constitutional question, and its meaning is further obscured by the “inexorable zero,” or the fact that no women were employed in the job category involved. Thus, the facts in Johnson would seem to fit readily within any evidentiary standard.

	Another verity that seems clearly to emerge is that future cases will be judged not only on the basis of demonstrable need to redress past discrimination but also in terms of adverse impact on identifiable non minorities. Accordingly, the duration and flexibility of the remedy have emerged as key factors in evaluating any affirmative action plan. And those remedies, like the minority layoff provision in Wygant, which immediately effect the displacement of white workers are most suspect and the least likely to meet the Court's constitutional and statutory tests. At the other end of the spectrum, hiring and training goals that have a more “diffuse” effect on nonminority applicants are more likely to win judicial acceptance. For example, the basic preferential hiring policy of E.0. 11246, mandating affirmative action by federal contractors, is probably undisturbed by these rulings, but in the event of layoffs such preferred hires presumably could not be immunized against the adverse effects of a seniority policy. The fate of promotional goals or quotas, however, may yet be largely unsettled and may depend on the circumstances of the particular case and whether constitutional or statutory standards are applicable.


Charles V. Dale
Legislative Attorney
American Law Division
May 18, 1987