CHARLES LIGE, a young black man in Montclair, N.J., wanted to be a fireman but he couldn't pass the test.
Like many others in his situation, he complained that he was the victim of discrimination - that the tests for firemen and policemen in his home town almost automatically weeded out black applicants.
And like many other such public agencies, the New Jersey Division of Civil Rights agreed with Lige. It wasn't that the city of Montclair was purposely discriminating. It was simply that the tests adversely affected the chances of nearly all blacks, victims of long-standing cultural discrimination, the agency said, and Montclair had to do its part to make up for it.
The fire department, said the state, must hire one minority applicant for each white hired until there were 15 minority firemen on the 88-man force. The police department must promote one black for every white promoted until 50 black applicants had been promoted.
The New Jersey Supreme Court, in a decision becoming increasingly common, ultimately ruled against Lige. The quotas imposed on Montclair, said Justice Sidney M. Schreiber, violate "the fundamental precept in a democratic society that merit, not skin color, should determine an individual's, place in society."
Lige's case is not itself unusual, but it raises in stark terms the divisive social issue called "reverse discrimination." That is a shorthand phrase for a prickly set of questions to which no settled answers are at hand.
Are blacks, other minorities and women due compensation for past injuries of discrimination? Can fixed hiring quotas or other numerical standards be used to repair the damages? Isn't the remedy a kind of discrimination-inreverse in which others - innocent themselves of discriminating acts - must pay the price? If the black or woman is discriminated "in," to put it baldly, isn't the white male discriminated "out?"
The issue cuts across virtually all social strata, from the academic towers of Berkeley to the foundries of Pittsburgh:
A plan for the Atlanta construction industry stipulates that, as of June, 1975, blacks, Spanish- surnamed Americans, Orientals and American Indians had to make up between 28.5 and 33.5 per cent of the asbestos workers employed on government-financed projects.
A college receiving federal funds must attempt to match its faculty hirings with the racial and sexual composition of the Ph.D. pool. If 20 per cent of the recent political science doctorates are earned by women, the university's faculty, within a period of years, should reflect that ratio.
A steel bearings company in Cleveland ought to have on its payroll a percentage of blacks equal to that in its labor pool, the geographical area from which it recruits workers. If it doesn't, a set of goals and timetables (more flexible that fixed quotas) is imposed to make sure the company is moving in the direction of a proportional work force.
"Two New Classes"
THE WISDOM and legality of reverse discrimination are being argued out in dozens of courtrooms, with widely varying results.
A policy of compensating one defined group at the expense of some other is particularly embarrassing to many of the traditional advocates of civil rights. Some of them see the advances of the 1960s running amok in the 1970s, penalizing some - usually white males - while helping others. Preferential treatment for one group, they contend, isn't what the authors of the Civil Rights. Act of 1964 had in mind. They commonly throw back the words of Sen Hubert H. Humphrey (D-Minn.), who said during floor debate on that bill that it "does not require an employer to achieve any sort of racial balance in his work force by giving preferential treatment to any individual or group."
One articulate critic is Nathan Glazer, a professor of sociology at Harvard and co-editor of The Public Interest magazine. He sees the trend transforming the country into hostile groups perpetually conniving to obtain favored status.
"We have created two racial and ethnic classes in this country to replace the disgraceful pattern of the past in which some groups were subjected to an official and open discrimination," Glazer writes in his book, "Affirmative Discrimination."
"Two two new classes are those groups that are entitled to statistical parity in certain key areas on the basis of race, color and national origin, and those groups that are not.
"The consequences of such a development can be foreseen . . . Those groups that are not considered eligible for special benefits become resentful."
Glazer also asserts: "This new course threatens the abandonment of our concern for individual claims to consideration on the basis of justice and equity, now to be replaced with a concern for rights for publicly determined and delimited racial and ethnic groups."
The new codes are defended in a variety of arguments by black and feminist advocates who see them as the only way to ending discrimination and compensating its victims for past losses. Every institution, after all, has had its own way of bringing in its own kind.White male college professors have traditionally operated and old-boy network that brought tenure to their friends. Being Italian and living next door to the business agent in South Philadelphia was good enough to get one's son into a union apprenticeship program. Alumnus status once was all it took to enroll one's offspring in a good college.
None of these ways, of course, was overtly discriminatory. It just happened that the results excluded whole groups of people from the selections. It is that type of "systemic" discrimination, in which society generally is at fault, which the advocates of today's programs hope to break down. True "merit," they contend, never was the real test for those institutions anyway.
"We paid lip service to merit and competence, but so many hiring decisions are made on the basis of extraneous factors," Howard Glickstein, former staff director of the U.S. Commission on Civil Rights, has written. "If there were some foolproof litmus test for determining merit, perhaps I would be fearful of tampering with the system. But the rules have been so rubbery in the past that I become a bit suspicious when a new rigidity is demanded as women and minorities appear at the gates." "The Wrong Question"
ONE WHO has watched the process sympathetically for years is James Jones, a University of Wisconsin law professor. Jones was the principal legal architect of the "Philadelphia Plan," which affixed a quota-hiring system to the construction trades in that city. A forerunner of several present day affirmative action programs, it has been copied fro about 70 cities.
Jones views the matters of quotas, goals and timetables for minority hiring with none of Glazer's fears; to him they are simply progmatic responses to systematic discrimination. The civil rights acts and executive orders signed by Presidents had, by the late 1960s, produced nothing but nice language, Jones believes. Something stronger was needed or blacks would remain frozen in an inferior economic status for generations.
"The government had tried less specific devices for years," Jones said, "and these gentler approaches were largely unproductive. We had to have specific measures to determine what's happened. Most responses [of employers] had been ephemeral. We never got so many screams from people until we got a measure to lay alongside their rhetoric."
But does not fulfilling some persons' rights not mean denying others'? "That's the wrong question," Jones refixed in thte Constitution after a terrible, despicable period of American history. Some don't get anything out of it, true; that is a byproduct of it - that some whites would lose. But there must be some kind of sharing to achieve the overall goal. It's not to do good to some and bad to others, but to achieve something the whole soceity wants."
The quotas and hiring goals imposed by government today differ drastically from the earliest concept of "affirmative action." For several years, that phrase simply meant that employers had to take certain steps - advertising jobs in newspapers, for example - to assure misnorities an equal chance to compete. By the late 1960s, however, civil rights law administrators concluded that, without numerical standards against which to measure employment, blacks would be perpetually shut out. In rather quick succession, quotas and goals were imposed by three principal government organizations - the Equal Employment Opportunity Commission, the Department of Labor's Office of Federal Contract Compliance, the Department of Health, Education and Welfare's Office of Civil Rights.
Ironically, they emerged during the Nixon administration, which many old-line civil rights organizations considered hostile. This has encouraged many articles to accuse "faceless bureaucrats" of writing tough guidelines and enforcing them mercilessly in defiance of their bosses, the political appointees who were supposed to set policy. Miro M. Todorovich, coordinator of the Committee and Academic Nondiscrimination and Integrity, which fights preferential hiring in universities, has blamed "rampant violation by the nonelected and nonaccountable federal bureaucrats . . ."
The charge is largely untrue. Most of the guidelines were written or approved by political officers in the higher echelons. The "Philadelphia Plan" was drafted - and widely publicized - by assistant secretaries and an undersecretary of the Labor Department. If was a joint venture of Labor, EEOC and the Justice Department that forced the precedent-setting consent decress requiring the American Telephone and Telegraph Co. to hire, promote and compensate financially many blacks and women. The August, 1975, university-hiring guideline emerged from the office of the secretary of HEW.
THe Bedrock Question
MOST BAFFLING to critics of the new trends is the concept that compensation is due those who have not, as individuals, been the object of intentional discrimination. What if the hiring process is fair and merit and talent are the only criteria? If more blacks than whites fail the tests, and even if these tests are acknowledged to be more difficult for blacks, why should those blacks be hired by Company X which is itself innocent? "We do not accept the general social disadvantages of a group as a cause for complaint," sayd Fred Baumann, assistant coordinator of the Committee for Non-Discrimination and Integrity.
If is the bedrock question that most sharply divides the advocates and opponents. Those who favor hiring the blacks say discrimination was inherent in their culture and that they could never compete equally with those who had enjoyed better schools and the many upward-motivating advantages of white society. In the most common metaphor, the race isn't equal when one contestant comes to the starting line with one leg withered by congenital muscular disease.
That assumption underlay the most prominent case in fair-employment law, decided by the Sumpreme Court in 1971 against the Duke Power Co. The opinion by Chief Justice Warren Burger barred the use of most general tests employed by industry because, even if most general tests employed by industry because, even if fairly administered, they discriminated against blacks who had suffered inferior education. The test, Burger wrote, were like "built-in headwinds" blowing against the blacks. It didn't matter what the company's policy had been; what mattered was the result: who got hired? Congress meant to get at the "consequences of employment practices, not simply the motivation."
Still, the law today is far from settled on preferential hiring. So far, courts have accepted statistical proof of discrimination, but many civil rights lawyers think they may not continue to do so. In a recent New York voting case, the Supreme Court permitted race to be a factor in legislative reqpportionment. But lawyers doubt it can be applied to cases other than voting rights, in which numerical standards are specifically prescribed by an act of Congress.
As the New Jersey case of Charles Lige illustrates, courts are not looking with a friendly eye on fixed quota systems, in which employers are required to hire so many blacks or women within an immediate time period. The general rule, according to civil rights attorneys, is that they will still accept the "goals and timetable" approach in which employers are instructed to work toward some future work-force target. To many critics, there is no essential distinction; both fixed quotas and long-range goals assume preferential treatment in behalf of one group and against another.
The issue comes squarely before the court next fall in the case of Allan Bakke, a Californian who was twice refused admittance to the University of California Medical School at Davis.
The university had allocated 16 of its admissions slots to disadvantaged students. Bakke had scored higher on tests than blacks and Chicanos admitted under the special program but not high enough to gain admittance to the regular program. He charged that his individual rights were denied when the less qualified were given preference.
California's highest court sided with Bakke. It saw some merit in preferential treatment for those previously discriminated against, but warned of a "divisive effect" pitting group against group. The court expressed "serious doubts whether the advantages obtained by the few preferred are worth the inevitable cost of racial harmony."
Preferential treatment for blacks might be merely a temporary panacea, to be eliminated when all groups stand an equal footing, some have suggested. The California court thought not. ". . . Human nature," it said, "suggests a preferred minority will be no more willing than others to relinquish an advantage once it is bestowed."