BOTH SIDES were wrong in the D.C. firefighters case decided for a second time last week by a U.S. appeals court panel. The case involves a 60 percent black hiring quota. Quotas are bad on principle, and this is more than is necessary to wipe away the vestiges of past discrimination that still affect this department. But the smug majority opinion in this case is, in its way, even more objectionable than the affirmative action plan that it strikes down.
The panel took up the case a second time to see whether the Supreme Court, in its Johnson decision earlier this year, had broadened affirmative action law to such an extent that the firefighters plan might pass muster. Previously the court had tended to uphold affirmative action plans only to erase lingering discrimination. Then in Johnson it suggested that discrimination no longer had to be proved; a preferential hiring or promotion plan could be used merely to rectify a "manifest imbalance" in employment.
We deplored this shift at the time, but it is the law now. The appeals court opinion by Judge Kenneth Starr glossed over it as if it had scarcely occurred. It says the law is the same as before -- that there has to be evidence of discrimination. Then it also glosses over history by saying there no longer is such evidence in the D.C. department.
Too blithe by far. Judge Abner Mikva wrote a scathing dissent. "Those black firefighters subjected to the Department's humiliating overt discriminatory practices, such as separate beds and eating utensils, during the 1950s, '60s, and '70s; . . . those . . . who during the 1970s, despite the fact that they had passed the entry-level exam, had to wait years later than nonminorities before being hired; those . . . who experienced the District's unlawful use of an unvalidated exam in 1981; and those . . . who brought suit in 1984 in order to ensure that the Department would hire its fire force in a manner that did not discriminate against minorities -- all those black firefighters might understandably not recognize the pretty picture the majority paints. They weren't happy with the plantation, no matter how good the separate but equal food."
Yet it is also true that the department is a moving target. The department is 40 percent black now (still much less than most other city agencies), and the figure is clearly rising (though thanks in part, Judge Mikva notes, to the very preferential hiring the appeals panel would halt). The chief is black, the mayor is black. To what extent should a court impose an extreme remedy to enforce change on a department that is already changing?
Judge Laurence Silberman, in siding with Judge Starr, wrote: "I think this case has very little, if anything, to do with remedies for past discrimination. . . . Instead, it has a great deal to do with old-fashioned American politics. . . . Blacks, as the political majority in the District, are understandably claiming that which their predecessor groups in American cities once enjoyed."
There ought to be an affirmative action plan for the fire department; its segregated history is too recent to ignore, as did this court. But there's no longer a need for as extreme a plan as the court has knocked down.