"MY TIME IS expiring, but my case is not," declared the plaintiff's attorney as he finished his argument in a recent Supreme Court case. The lawsuit posed an important question: may courts require that white policemen and firemen in Boston be laid off before minority officers with less seniority, in order to protect employment gains made by blacks and Hispanics? This week, the Supreme Court sidestepped this issue by returning the case to lower courts for consideration of a much narrower question: is the Boston litigation still a live case in controversy or is it moot because all the laid- off white officers have already been rehired?
It is not at all unusual for the court to avoid deciding important constitutional questions having broad application when they can dispose of a case on narrower grounds. But when the justices agreed to consider the Boston case, some litigants understandably assumed that this would not be done. Perhaps the court backlog--almost 100 cases argued this term have yet to be decided--caused the justices to reconsider their priorities. It is, nonetheless, disappointing not to have a ruling.
The Boston case involved layoffs, not the hiring or promotion preferences that are more commonly contested in federal courts. None of the white officers had caused or benefited from discrimination as an individual, and none of the minority officers had to prove that he, as an individual, had suffered. Both sides were treated as classes, and both groups were innocent of wrongdoing. All officers were protected by a colorblind seniority system. In such circumstances, is it fairer to lay off innocent whites or innocent blacks? It is for tough questions like this that we have a Supreme Court.
All over the country, employers are 1) grappling with the need to implement affirmative action plans and 2) threatened by reverse discrimination suits. Two cases involving promotion preferences for police in Detroit and New Orleans are pending in federal circuit courts. Another, concerning racially structured layoffs in Memphis may get to the Supreme Court as early as next term. A final court decision of broad applicability is needed to provide guidance for people of good will on both sides of this vexing question.