Such is the tangled web we have woven in race policy, the Supreme Court is now being urged, in the name of civil rights, to uphold a lower court decree establishing a new form of segregation. Unless the court overturns the decree concerning Boston's police department, judges may establish job entitlements for government-approved minorities, and may disregard state laws when fine-tuning those entitlements.
In 1970 blacks and Hispanics comprised 16.3 percent of Boston's population but only 2.3 percent of police officers. After several years of litigation, a court ordered Boston to give priority to hiring blacks and Hispanics until their percentage in the department approximated their percentage in the population. There was no judicial finding of purposeful discrimination, only a finding that minorities were denied "equal protection" of the law because they were adversely affected by hiring criteria that were not sufficiently job-related.
Since the court-ordered reverse discrimination in hiring began in 1973, 46 percent of the persons hired by the police department have been minorities. By July 1981, they comprised 11.7 percent of the force. But by then they comprised 30 percent of Boston's population. Then another complication emerged: voters passed a tax-reduction initiative, which resulted in the need to reduce the police force. Massachusetts law establishes a seniority system, requiring police officers to be laid off on a last-hired, first-fired basis. That would have reduced the minority component of the force to 6.2 percent. So a court declared the state law inoperative and imposed segregated seniority lists.
On the basis of those lists, layoffs were to be conducted so as to keep the July 1981 level (11.7 percent) of minorities. Some white officers with 11 years service were fired while minority officers with only two years service-- who had not suffered discrimination-- were retained.
The Anti-Defamation League, a Jewish organization long identified with civil rights causes, has filed a brief urging the Supreme Court to overturn the lower court's action because (among other reasons) that court exceeded its remedial powers when it tried to "correct" a social development unrelated to discrimination.
The brief notes that in a 1971 school case the court held that there is "no substantive constitutional right (to a) particular degree of racial balance or mixing" after a constitutional violation has been remedied. In a 1976 school case, the court held that a federal court has no power to mandate a correction of a racial "imbalance" that occurred in a school as a result of population changes subsequent to desegregation measures and unrelated to discrimination. Yet in the current case, the lower court's decree implies a judicial power to create for government-approved minorities a perpetual right to a proportionate share of certain jobs. Furthermore, it implies a virtually uncircumscribed judicial power to command this result, regardless of the reasons why the result requires a command.
The league's brief notes that in 1977 the court limited "retroactive seniority" to identifiable victims of discrimination. The brief argues that the lower court's creation of a racially segregated seniority system in Boston is an abuse of the judiciary's equity power.
The Weber case (1979) concerned a privately negotiated agreement that prevented white employees from applying for half the openings in a company's advancement training program. In upholding the agreement, the court stressed that the plan did not require the discharge of white workers, and that the injury to white employees' expectations was counterbalanced by injury done to blacks by intentional discrimination.
A 1980 case concerned the power of Congress to foreclose white contractors from bidding on 10 percent of some new federal contracts. In upholding Congress' action, the court stressed the marginal nature of the unfairness and the fact that the measure was temporary. In Boston the lower court's various remedial efforts have been under way for nearly a decade, and the logic of the decree at issue is that the court's supervision of the police department's personnel policies can be perpetual.
Those who hope the lower court's extraordinary action will be upheld (the NAACP, for example) favor inflicting injury on a class of persons who are guilty of no unlawful behavior, who have benefited from no unlawful behavior and whose injury derives solely from their skin pigmentation (white).
Those who want racial proportionality--the perpetual parceling out of benefits on the basis of pigmentation or origin--to be public policy should urge legislatures to try to make it so. Then courts could try to square this divisive emphasis on immutable characteristics with this premise of our political order: rights inhere in individuals, not groups.