And now comes Boston. Once again, the country has a new and major federal civil rights controversy. The dispute is yet another wrinkle on affirmative action which is at once a part of, yet different from, earlier cases.
The courts in that northeastern citadel ruled in 1974 that the city's police and fire departments discriminated "to the virtual exclusion" of blacks and Hispanics and ordered that these groups be hired to redress past imbalances. Last year it became necessary to cut the city budget and, as a consequence, lay people off.
Under Massachusetts seniority laws, the brunt of the layoffs would have fallen on the recently hired minorities who lacked seniority over whites. The minorities sought modification of the seniority system. The First U.S. Circuit Court of Appeals ruled that minority layoffs would have produced the same imbalance that existed in the first place. As a result of the court decision, whites were laid off rather than blacks and Hispanics with less seniority.
The whites are appealing this to the U.S. Supreme Court. The Reagan administration, meanwhile, has become the first administration to intervene on the side of whites in an affirmative action case. The Reagan Justice Department has stepped in and asked the Court to strike down this "reverse discrimination" order.
This case differs from the 1978 Bakke affirmative action case, which involved denial of admission to a medical school, not expulsion or suspension of a student. It differs, too, from the 1979 Weber case, which concerned private affirmative action undertaken by an employer and a union, and did not involve layoffs of white workers and replacement by minorities.
The Reagan administration has done great harm by stepping in on the side of the white workers in this complex and sensitive case. It was not a party to the controversy, and even if it chose to ignore the recommendations of its own Equal Employment Opportunity and Civil Rights commissions, which recommended that the government side with the minorities, it could have at least remained neutral. What it did was send yet another signal that its interests are against the poor, blacks, and other minorities.
The administration's position is that a provision of the Civil Rights Act's Title VII, the job discrimination law, specifically exempts bona fide seniority systems from interference by federal judges unless you can show intentional discrimination. Civil rights lawyers argue that the court's judicial powers do extend to seniority, although the power should be used in a cautious manner. Arthur S. Miller, professor emeritus of law at George Washington University, says of intentional discrimination: "Establishing an improper motive . . . is simply not possible in many instances."
The administration says, too, that individual victims, rather than a class of victims, must be identified in affirmative action remedies. But as Barry Goldstein of the NAACP Legal Defense Fund, points out, "we know the problem is not that of individuals, but of the systemic practice of discrimination that limits opportunities of minorities and women. The Justice Department remedy doesn't match the problem."
The administration is saying, yes, there are victims, but we are not going to do anything about them. And when the issue is race versus rank, unfortunately the weight of law, legislation and court decisions have been on the side of seniority.
Now is the time that serious debate should ensue as this important controversy--civil rights protection versus the principle of seniority--is examined. How critical is seniority? Are there affirmative action remedies that now should be examined?
The problem is that those in power and those who benefit do not want to have a serious debate. The ardent opponents of affirmative action prefer the simplistic suggestion that somehow if you don't take race into account, you don't have victims. But we see daily around us the victims of discrimination, in government, in corporations, in people who have been denied their dreams.
To their cries, the administration answers with its stated, foolish goal of "genuinely color-blind action." Blacks want to get away from having exclusive options on shattered dreams.