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Court Extends Racial Quotas to Promotions

February 26, 1987|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — The Supreme Court, in another victory for backers of affirmative action, Wednesday upheld a plan requiring that blacks get half of all the promotions among Alabama's state troopers.

In a 5-4 decision, the court concluded that such a strict measure was needed to remedy "pervasive, systematic and obstinate" racial discrimination in that state's Department of Public Safety.

The ruling was a setback for the Reagan Administration, which has maintained that such rigid quotas violate the Constitution's provision for equal treatment for all.

Among proponents of affirmative action, it was hailed as a significant step because it expands the use of "race conscious" plans in the workplace to promotions. Last year, in a case involving hiring, the justices upheld a strict employment quota to remedy "egregious discrimination" against black sheet metal workers in New York.

A spokesman for the Justice Department, which had appealed the Alabama order, said that the court ruling was "not surprising" and seemed to parallel the decision from last year.

In upholding the Alabama trooper promotion formula ordered by a federal judge, the Supreme Court concluded that it was "narrowly tailored" to fit the facts of the case.

Justice William J. Brennan Jr., writing for the court, stressed that Alabama repeatedly had refused to hire or promote blacks. This "discriminatory conduct . . . created a profound need and a firm justification for the race-conscious relief ordered by the district court," he said.

Brennan noted that the promotion plan was not "an absolute bar to white advancement" nor did it "require the layoff and discharge of white employees."

Quota Called 'Extreme'

In dissent, Justice Sandra Day O'Connor conceded that Alabama's conduct was "reprehensible" but contended that "there is no evidence in the record that such an extreme quota was necessary to eradicate the effect of the department's delay."

She suggested that the judge could have used other, less rigid means of accomplishing the same goal, such as appointing a trustee to oversee promotions. She was joined in dissent by Chief Justice William H. Rehnquist and Justices Byron R. White and Antonin Scalia.

Clyde Murphy, an attorney for the NAACP Legal Defense Fund, said that Wednesday's ruling clears up doubts about affirmative action in promotions.

"That issue was left open before. Here, they said there wasn't really significant difference between hiring and promotions," said Murphy, who had filed a friend-of-the-court brief in the case. "It's also another rejection of the arguments made by the Reagan Administration."

Another Defeat

Deborah Burstion-Wade, the Justice Department spokesman, admitted that the ruling was another defeat for the department's view that the courts must adhere to a "colorblind" standard.

"They are saying that, when all else fails in the most egregious cases, you can use affirmative action," she said, calling it a "narrow ruling."

"We still do not agree with that policy," she added.

Wednesday's decision in U.S. vs. Paradise, 85-999, was the first of two before the court that concern affirmative action in promotion. The other, which concerns a woman promoted over a more qualified man, tests whether a government agency may use affirmative action without firm evidence of previous discrimination. A ruling in that case, which was argued before the court on the same day as the one from Alabama, is pending.

Working on Sabbath

In other actions Wednesday, the court:

--Ruled 8 to 1 that states may not deny unemployment benefits to those who lose their jobs because they refuse to work on their Sabbath. A Florida woman who became a Seventh-Day Adventist was fired when she refused to work on Saturdays and was then denied unemployment benefits because her firing was judged to have resulted from "misconduct."

Brennan, writing for the court in the case (Hobbie vs. Unemployment Appeals Commission of Florida, 85-993), said that forcing an employee to choose between her religion and her job violated the Constitution's protection of the "free exercise of religion." He cited similar court rulings in 1963 and 1981. Rehnquist dissented, alluding to his dissent in the 1981 case, in which he had argued that states need not make such an accommodation to religion.

--Ruled unanimously that the Federal Communications Commission may require utility firms to let cable television companies string wires on their poles for a nominal charge (FCC vs. Florida Power, 85-1658).

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