At a time when war has been declared against affirmative action quotas, the D.C. Fire Department's affirmative action plan represents a partial victory. Moreover, it has ramifications far beyond the issue of employment discrimination and beyond the geographical borders of the city of Washington.
The crucial thing about the recent ruling by U.S. District Judge Charles R. Richey was that he rejected the argument that the Justice Department has been making around the country: that the Supreme Court has ruled that quotas are illegal under federal civil rights law. The court has not, and Richey's decision underscores that point.
In his opinion, the fire department's use of strict numerical goals for hiring is permissible under civil rights law and the Constitution. He found fault, however, with the plan's policy demanding racial quotas in promotions.
"The white firefighters have earned the right to expect to be able to reap the rewards of their many years of service and dedication without those rewards stripped away solely on the basis of race," he wrote. "Black firefighters have also worked hard, having to overcome a long history of racial prejudice. However, the fact of past discrimination alone is not enough to deprive innocent whites of their legitimate expectations of advancement."
On balance, the city, the Justice Department and the firefighters union gained something. The city had the hiring part of its plan accepted; the Justice Department had promotions rejected, and the white firefighters had promotions protected.
But black firefighters were left out of the equation.
Only 38 percent of the District's uniformed force is black, as opposed to 64 percent of the working age population. In 1984, the fire department's exam for hiring was found to have had "an adverse effect on minorities because whites achieved higher scores and would get the first jobs if they were awarded on the basis of these scores." The city's plan to redress this calls for dividing the applications according to race and appointing three blacks for every two whites.
There has been much made of the innocence of the white firefighters. But if the white firefighters are "innocent," the black firefighters are even more innocent. Neither they nor their ancestors discriminated against the white firefighters. They were the ones being discriminated against. That is why the courts approved race- and gender-conscious remedies in the first place.
Judge Richey's ruling that the case should go back for redrafting reflects in part a failure of the District government. "The D.C. government didn't put in the record any history of discrimination of promotion within the fire department," said one civil rights lawyer familiar with the case. The city, therefore, should go back to Richey and present more evidence, working toward a plan that would allow for the promotion of some whites and some blacks.
It is a case easily made, for that decade-old struggle against bias in the fire department is what this suit is all about anyway.
The D.C. case aside, the problem with those who argue against quotas is that they do not advance any reasonable substitute or viable program to achieve equality. They want only to require employers to stop discriminating and become equal opportunity employers motivated only by their good will -- no goals, quotas, timetables -- nothing. If this were a colorblind society, there wouldn't be any need for such remedies. But it isn't.
The war against quotas has been conducted so cleverly that even some blacks have become unwitting foot soldiers. Said one: "In the beginning we were assured that if we gave in on quotas, goals and timetables would be protected. Quotas they said were too rigid and inflexible. Goals and timetables are neither flexible or rigid. Now I see it was a smoke screen to go after all such remedies."
So make no mistake about it, the real agenda here is about limiting power and opportunity for minorities and women. Quotas, goals and timetables are merely the means. If the affected groups accept this current course, they risk encouraging the status quo and perhaps a permanent economic inferiority. If that happens, it will be our children and grandchildren who suffer. The fate of millions of people, in the District and beyond, may be at stake.