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  •   Court Spurns Affirmative Action Case

    By Amy Goldstein
    Washington Post Staff Writer
    Tuesday, March 30, 1999; Page A4

    The Supreme Court again refused to enter the contentious realm of affirmative action, declining yesterday to take a case from Dallas over the objection of two justices who argued that the court should examine the constitutionality of a program designed to benefit minority firefighters.

    By turning the case away, the court ensured that Dallas will no longer be able to employ an affirmative action program it had adopted a decade ago to help diversify the ranks of its firefighting force.

    The justices' action also shows how much the subject of racial preferences continues to polarize the court. The court's two Clinton appointees, Stephen G. Breyer and Ruth Bader Ginsburg, issued an unusual written dissent, urging the court to take the case. Written by Breyer, the dissent said that the 5th Circuit Court of Appeals had erred last year in concluding that there was not enough evidence of past discrimination in the hiring and promotion of Dallas firefighters to warrant the city's plan for remedying the problem.

    The court majority did not explain why it rebuffed pleas from the city of Dallas to overturn the lower court's decision. But legal experts on both sides of the issue said yesterday that the court's decision was in keeping with its coolness in recent years to the idea of special racial preferences in education and employment.

    While not rejecting it altogether, "the court is treading very cautiously in the area of affirmative action," said Walter Dellinger, a former acting solicitor general in the Clinton administration who now is a Washington lawyer and Duke University law professor.

    "Lower courts are getting the unmistakable message from the Supreme Court that racial preferences are a dying and disfavored device," said Clint Bolick, litigation director for the Institute for Justice, a public interest law firm that opposes affirmative action.

    The Dallas firefighters' case stems from a five-year affirmative action plan that the city adopted in 1988. It permitted certain black, Latino and female members of the fire department to be promoted over others even if they earned lower scores on written promotion tests.

    The policy prompted four lawsuits between 1991 and 1995 by the Dallas Fire Fighters Association and individual white and Native American members of the department who were bypassed for promotions.

    Before the lower courts and in its petition to the Supreme Court, the city of Dallas argued that such preferences were legally justified, because they were intended to correct past discrimination. The city said ample evidence of past discrimination included a 1976 settlement with the U.S. Justice Department, which found that the city had engaged in biased hiring practices. The city noted that the fire department had not hired an African American firefighter until 1969, and that minorities and women still were underrepresented in the department's higher echelons.

    In a ruling last year, however, the 5th Circuit concluded that the department's racial and gender preferences violated constitutional "equal protection" rights of the department's white males. And it found that Dallas had not proven it had a "history of egregious and pervasive discrimination" to justify "interfering with the legitimate expectations" of firefighters who believed they deserved to be promoted based on their test scores.

    The high court chose not to accept the Dallas case on the same day that it agreed to hear a First Amendment case testing whether public universities may require their students to help subsidize campus organizations and causes with which they disagree.

    The case involves the University of Wisconsin at Madison, where a small group of conservative, Christian law students filed suit to protest the way the university was distributing student activities fees that all students were required to pay.

    In the 1996 suit, the students argued they should not be forced to help fund several liberal groups whose purposes they contended are largely political, including a campus feminist organization, an AIDS support network and a campus center for lesbian, gay and bisexual students. University officials appealed the case to the high court after lower federal court rulings barred them from using the student fees for such purposes.

    © Copyright 1999 The Washington Post Company

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