What Bakke Means (Contd.)

The court moves warily, but affirmative action gains

Just five days after its ruling on the "reverse discrimination" complaint of the medical school applicant Allan Bakke, the Supreme Court last week turned to the no less controversial issue of affirmative action in the field of employment. In contrast to the Bakke decision, in which six Justices filled 154 pages with occasionally passionate legal arguments, the court simply let stand--without explanation--a lower-court ruling that approved numerical goals for employment and promotion of minorities and women.

At issue was an affirmative-action program, the largest in the nation, that affects 780,000 employees of the American Telephone & Telegraph Co. The 1973 plan was negotiated by several federal agencies, including the Labor Department's Contract Compliance Office and the Equal Employment Opportunity Commission, which had charged the phone company with job discrimination. Although it did not admit to that allegation, AT&T agreed to make payments totaling $15 million to compensate 15,000 workers, mostly women, who were said to be victims of past promotion and salary discrimination.

The company also agreed to a set of percentage hiring goals in various job categories for women and minorities, plus substantial promotions of both groups to higher-paying craft and managerial positions. Under the program, minority managers did increase from 4.6% in 1972 to 8.7% in 1977, and the number of women in middle and upper management rose from 8.8% to 16%. The total number of minority employees grew by 21,000--while AT&T's total work force declined by 27,000 because of an unfavorable business climate during this five-year period.

The AT&T program was legally challenged by three unions in 1975. The unions argued that Government pressure had led the company to welsh on seniority requirements for promotion, agreements that had been spelled out in union contracts. The unions' main target was the threat to their seniority preference plans, not other elements of affirmative action. Their claim was rejected in the spring of 1977 by the Third Circuit Court of Appeals. The Supreme Court last week refused to review that decision.

Minority leaders and federal affirmative-action officials saw this development as further support by the court for their efforts. In Portland, Ore., addressing an anxious convention of the National Association for the Advancement of Colored People, Eleanor Holmes Norton, chairman of the federal Equal Employment Opportunity Commission, hailed the court's refusal to hear the AT&T case and strongly defended her agency's commitment to numerical hiring and promotion goals for minorities and women. Said Norton: "We will not stop using them unless the court tells us directly to stop."

Legal experts cautioned, however, that it would be unwise to read too many implications into a Supreme Court refusal to review. The court might have many reasons for this refusal, including simply a desire to postpone substantive discussion of such a complex subject until fall.

In fact, the court sounded a note of judicial restraint in another affirmative-action decision last week, when it dealt with a suit brought by California contractors seeking to overturn a requirement of the federal Public Works Employment Act of 1977 that 10% of federal public works grants go to minority contractors. The court returned the case to Los Angeles District Judge A. Andrew Hauk --who had declared the minority contractor set-aside unconstitutional--but it made no ruling on the merits of the case. It suggested only that the California suit may be moot; since all federal contracts for the 65 Los Angeles-area public works projects have already been awarded, there may no longer be a legal controversy for the courts to resolve. But a number of other contractors have mounted similar challenges to the 10% quota, and it is likely that the high court will be confronted with this issue again.

As the nine Justices began their summer recess, lawyers and officials were left to ponder the meaning of the delicately balanced Bakke decision, which decreed that race may be an element in university admissions but not on a basis of numerical quotas--unless a previous history of discrimination is involved. Most university officials regarded that as an endorsement of the affirmative-action programs they already use, but in other fields, there was considerable confusion.

In Atlanta's Fulton County, for example, the commissioners had completed last April an affirmative action plan that would add black employees to the county's payroll at the rate of 4% per year over the next five years, boosting their proportion from 26.6% to 46.6%--the percentage of blacks in the county's total labor force. But when Fulton County Attorney Robert Young read the Supreme Court's Bakke ruling, he told the commissioners that parts of their new hiring plan were illegal. County affirmative-action officers, said Young, "would direct department heads not to hire whites. You can't accomplish a 4% [annual increase] for blacks without discriminating on the basis of race." Last week the commission decided (by a vote of five white to two black commissioners) to postpone action on the new program for two weeks while the county attorney seeks to modify the program.

In Chicago, Federal Judge Prentice Marshall had been scheduled to order a new promotion examination for city police patrolmen seeking to become sergeants. Marshall had previously ruled that the city's 1973 exam discriminated against blacks and other minorities, and he had ordered a minority hiring quota for new sergeants. But after the Bakke ruling, Attorney Norman Barry, represent-big 111 patrolmen who had passed the 1973 exam but lost out on promotion through imposition of the quota, argued that his clients deserved promotion before any new exam was ordered. Said he: "My people are victims of Judge Marshall's command that the city correct its previous discrimination by imposing quotas. They are Bakke. They are victims of reverse discrimination brought about by court order and a rigid quota." The comparison seemed somewhat stretched, but Judge Marshall nevertheless delayed his order abolishing the 1973 list of candidates for promotion and allowed Barry time to submit new arguments based on the Allan Bakke case.

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