An affirmative action promotion plan for the D.C. Fire Department nearly identical to one thrown out two years ago by a federal judge was resubmitted to the court yesterday, and the District said it should be accepted because of a recent Supreme Court ruling.
The resubmission of the plan to U.S. District Judge Charles R. Richey was the latest move in the city's efforts to comply with a May 1984 consent decree to come up with an affirmative action plan for firefighters.
In March, the Supreme Court, ruling in a California case, gave a broad endorsement to affirmative action programs and specifically said that a showing of previous discrimination is not required before an affirmative action plan is enacted.
A month before, the U.S. Court of Appeals here threw out the District's affirmative action hiring plan, saying that there was no proof of past discrimination by the District against blacks and other minorities in the department.
The department, however, continued hiring under the plan, according to court documents the city filed in April.
"The Supreme Court has held that the voluntary elimination of the effects of such past discrimination is not only lawful, but should be encouraged," said the District in its seven-page plan.
The appeals court is considering a request to rehear that case in light of the recent Supreme Court ruling. In the meantime, the plan it threw out expired, and Richey, who described the department as being in "a state of confusion," set yesterday as the new deadline for a plan to enforce the consent decree.
The city did not submit a specific affirmative action hiring program to replace the expired plan, opposed by the Reagan administration, which mandated that 60 percent of all firefighters hired be black.
In the new proposal, the District encouraged "race-conscious recruitment" and "a selection procedure which does not disproportionately disadvantage blacks," but it said that its personnel office will not be able to develop specific hiring procedures for 10 to 12 months.
In another action, it was disclosed that three experts from St. Louis, whom the District hired to develop the promotion tests, had declined to participate in the development of the new plan.
"None of us has any special expertise in this aspect of fair employment," wrote the three experts in a document filed in federal court yesterday.
The new plan is the latest twist to the complex and protracted legal struggle over alleged discrimination that began in 1980, when two black firefighters filed complaints with the D.C. Office of Human Rights. The complaint alleged that the department had discriminated against blacks by failing to notify them about vacancies and by using unvalidated tests for hiring firefighters.
The District government denied discriminating in Fire Department hiring, but it agreed to a consent decree that led to the hiring plan.
The hiring guidelines, drawn in 1985 and approved by a federal judge here, were part of an overall affirmative action hiring and promotion plan for the department, which in 1960 was 12 percent black but as recently as April 1, 1984, was 38 percent black.
The promotion guidelines in the plan were thrown out by Richey shortly after they were submitted, and the city delayed formulating a new promotion plan while awaiting outcome of the appeal. Promotions to ranks above sergeant -- about 100 -- have been blocked since then.
Staff writer Nancy Lewis contributed to this report.