Last Jan. 21 a California appeals court struck down a law school's affirmative action admissions plan even though it set no formal quotas. But four days later, the California Supreme Court concluded that a hiring program that did set a quota -- one minority attorney for every two non-minorities -- was permissible.
In February 1979, the 4th U.S. Circuit Court of Appeals said a plan requiring specific minority representation on two student government bodies was illegal.But in October, the 6th U.S. Circuit Court of Appeals approved a plan requiring that half the Detroit policemen promoted to sergeant be black.
Confused? So are the courts.
The reason for the confusion is the U.S. Supreme Court's celebrated Bakke decision. Since it was announced two years ago last Friday, The case has set a precedent for disagreement.
In that 5-to-4 decision, the court ruled invalid a quota plan at the University of California at Davis Medical School, which the plaintiff, Allan Bakke, is now attending. Five justices in the case ruled that race may be a factor in admissions, hiring and promotion programs, but the court could not agree on how much of a factor it may be.
Many attorneys familiar with affirmative action law have been surprised by the relative lack of litigation after the 1978 ruling. But the Bakke case and its aftermath illustrate what can happen when a sharply divided Supreme Court provides what the nation's lower courts see as limited guidance.
Because no single justice's opinion in Bakke commanded a majority of the Supreme Court, lower court judges have been freer than usual to interpret the law in conflicting ways.
Says Walter F. Murphy, a constitutional scholar at Princeton: "It's like saying to a surgeon: Here's an operation that's never been done before. God Bless you; there are three different ways to do it'."
The result, says California Court of Appeals Judge George Paras, can be an unequal application of justice.
"It was not the kind of definitive opinion that nine men who lead our country's judiciary ought to put out for the benefit of our society," said Paras.
Paras wrote the majority opinion in the case of DeRonde vs. Regents of University of California, in which the appeals court rejected an affirmative action plan with no quota.
In the opinion, he sharply criticized the high court's Bakke ruling as "weak and inconclusive."
"The Supreme Court Justices," he added, "intellectualized themselves into decisional obscurity."
Donald L. Reidhaar, who was the university's attorney in the case, calls the DeRonde ruling "a sport, an aberration that was "clearly wrong."
Wrong or right, the DeRonde decision suggests the latitude a split decision like Bakke gives a judge like Paras, who opposed any special preference for minorities, to interpret the law as he personally sees fit.
"When the court is badly split," says Murphy "you find lower courts just picking and choosing."
Bakke's failure to strongly protect university affirmative action programs for example, allowed Paras's court in DeRonda, to use the state's equal protection clause to reject the UC-Davis plan.
Other courts have employed varying interpretations of Bakke to handle their own affirmative action cases.
In upholding quotas for promotion of black police in Detroit, the 16th Circuit concluded that the opinion of Justice William Brennan, supported by three other members of the Supreme Court, "offers the most reasonable guidance."
But in ruling unconstitutional fixed minimums for minority representation on the University of North Carolina student governing council and honor court, the 4th Circuit Court of Appeals relied on the centrist opinion of Justice Lewis Powell.
It was the second time the 4th Circuit had found the North Carolina plan improper.
It first rejected it in 1977, before the Supreme Court had decided Bakke. The North Carolina school appealed, and the Supreme Court agreed to hear the case. The justices then decided Bakke and sent the North Carolina case back to the appeals court for reconsideration -- only to have the lower court reach the same conclusion.
Courts can cite different opinions in the Bakke case with arguably equal weight because no single justice's view commanded a majority of the court. Instead, four justices rejected the quotas in the disputed admissions plan, while four others said such special minority preference is permissible except where it is not employed to remedy past discrimination.
Powell agreed that race may be a consideration in such matters, but rejected the UC-Davis system's use of quotas.
And so both sides in the debate over affirmative action and reverse discrimination have been left waiting, two years after Bakke, for the other shoe to drop.