THE FIRST THING to be said about the Supreme Court's decision in the Weber case is that if Congress doesn't like the result, it can change the law. The court merely expressed its judgment of how Congress intended the 1964 Civil Rights Act to apply to private, voluntary affirmative-action programs. If the justices read that intention incorrectly, as the two dissenters vigorously contended, Congress can correct their error.
It is somewhat suprising, therefore, that this case has become such a cause celebre . Basic constitutional principles have never been involved, and the court's decision has nothing to do with the rightness or wrongness of affirmative-action programs undertaken by private employers or labor unions.
Because the affirmative-action plan in question was adopted voluntarily by Kaiser Aluminium and the United Steelworkers, the "color-blind" test of the 14th Amendment did not apply. This put the case in an entirely different legal framework from that in which the Blake case was decided a year ago. In the latter, government action, to which the 14th Amendment does apply, was involved because Congress was legislating to determine how federal money would be spent.
The argument over whether the court has properly interpreted the 1964 act in this case will, no doubt, be long and bitter. The language of the law, on its face, seems to indicate the justices are wrong. The law makes it illegal to "discriminate . . . because of . . . race" in selecting apprentices for training programs. That is precisely what Kaiser and the USW agreed to do when they established a training program for skilled workers and reserved half the places for blacks.
But the argument made by Justice William J. Brennan that such a literal reading would defeat the purposes for which Congress passed the act is persuasive. It is reinforced by a subsequent section of the act, which says the law shall not be interpreted "to require" any employer to grant preferential treatment to members of any race but says nothing about employers who voluntarily grant it.
Indeed, if the court had struck down this particular affirmative-action program, many employers would have been left with a dilemma. If their hiring practices in the past had worked to discriminate against any racial group, as had Kaiser's, they would have been unable to actively recruit minority workers to redress the imbalance on their work force. Yet if that imbalance were not redressed voluntarily, the chances of a company's being found in violation of the 1964 act would increase enormously.
One of the ironies in the Weber case is that white as well as black employees of Kaiser benefitted from the affirmative-action program. Before the program's adoption, Kaiser had hired only experienced craft workers. Under the program, Kaiser selected all those to be trained in the crafts from among its unskilled workers who had not had a chance previously to move up. The real argument was whether Kaiser could select blacks with less seniority than whites for 7 of the 13 training slots.