IT IS TEMPTING to read far more than is actually there into the Supreme Court's decision upholding a legislative apportionment plan based on racial quotas. The temptation arises because the issue of giving racial minorities a better opportunity in society extends far beyond apportionment to education, employment, housing and many other areas government touches. In legal terms, the means for achieving this opportunity are much alike - whether you call them racial quotas, race-centered remedial measures, or reverse discrimination - because they all focus on race as the distinction between various groups of citizens.
Judged by the cases tha tlie ahead, teh apportionment case decided Tuesday was easy. Yet the Justices split four ways with no one position mustering more than four votes. Taken to the lowest common dnominator, seven justices agreet that states covered by the Voting Rights Act can design legislative district boundaries along racial lines in order to provide an opportunity for minority representation in the state legislature. This case involved a plan that distrubted a Jewish area in New York among several predominantly black districts so that each district would be 65 per cent black, thus creating a good chance for electing a black legislator.
In one sense, the decision is not unusually important since the facts are peculiar and the absence of a majority opinion reduces its value as a precedent. But the fact remains that the Court approved, for the first time, the use of a precise racial quota by a state government in dealing with its citizens - and that is important. If such quotas are premissible in the crucial area of voting, for instance, should they not also be permissible in other fields such as admission to college or hiring for jobs? The trouble of course - both constitutionally and poltically - is that any time someone is included in a group because of a racial quota, someone else is excluded because a race. And for many who believe the Constitution requires government to be color-blind, that is racial discrimination pure and simple.
There are distinctions between voting and other matters that may have been critical to the Court's handling of this case. The first is that as long as politicians believe racial groups vote in blocs, racial factors will be considered (openly or secretly) in apportionment decisions; to argue that those decisions must be made on racially neutral grounds, as Chief Justice Warren E. Burger does in dissent, is to ignore reality. The second is that the Court has held in several prior cases that states must take race into account in apportionment matters and, indeed, has required that black districts be created in some states because prior apportionment plans had split the black vote deliberately in order to squelch black representation. The third is that the purpose of the New York plan was not to reduce the representation of a minority group or to give a racial group higher representation than it had population in the relevant political jurisdiction. The fourth is the existence of the Voting Rights Act in which Congress specifically authorized the use of race-oriented remedies to overcome prior racial discrimination.
Some, but not all, of these factors exist in other areas where quotas or other race-oriented devices have been used. And we are not about to guess how the Justices will regard them in another case now pending - a claim by a white student that he was unconstitutionally discriminated against when his application to a California medical school was rejected while several minority applicants with lower test scores were admitted. That case has other elements too - the attempt to provide minority representation in a key profession, an effort to creat a mixed student body, and so on.
There is great appeal in Chief Justice's position that the government must be color-blind and it is, of course, the goal toward which the country must move. But there is also an awful dilemma. If the government in all its forms cannot consider race for any purpose, the possibility exists that racial minorities will be frozen into the existing social, educational and professional patterns. But if it does consider race, at least in more than a remedial sense, then how much actual change can one say there has there been in the last 25 years - except for the color (or colors) of the preferred race? We, along with the Court, are going to ponder that this spring.