A proposed affirmative action plan for the D.C. Fire Department was sent back to the drawing boards this week by U.S. District Judge Charles Richey. The plan was rejected because Judge Richey found one element of it -- the provision mandating racial quotas in promotions -- to be in clear violation of Title VII of the Civil Rights Act of 1964, which prohibits racial discrimination in employment. Some elements of the plan involving training and special programs to encourage applicants from the city's public high schools have not been challenged and should be kept in the revised plan. But the most difficult task for drafters will be devising an acceptable program to increase the hiring of minorities by the department.
Judge Richey distinguished between the rights of those already employed as uniformed firefighters and those who are simply applying for the job. Employees have a right to be considered for promotion without regard to their race, but applicants, he ruled, have less substantial rights and can be hired on the basis of a quota, such as the one in the plan that requires that 60 percent of those hired in the next two years must be black. Nevertheless, the judge conceded that he was "not comfortable with racially based distinctions," and he urged those redrafting the plan to consider alternatives to quotas, even in hiring.
Why is the court considering quotas? Although it is true that only 38 percent of the uniformed force is black, as opposed to 64 percent of the city's working-age population, recruitment of minorities has increased steadily in recent years. In the past five years, 68 percent of those hired for uniformed positions in the department have been black. The examination for entry-level firefighters has been given four times recently. In 1980, 74.35 percent of those who took the test were black and exactly 74.35 percent of those who passed were black. In the 1984 examinations, 64.6 of the applicants were black as were 60 percent of those who passed. Nevertheless, the examination was found to have "an adverse impact" on minorities because whites achieved higher scores and would get the first jobs if they were awarded according to these scores. To avoid this, the affirmative-action plan proposes dividing the applicants according to race and appointing three blacks for every two whites.
Arrangements of this kind for the hiring of public employees have been approved by some federal courts. But the Supreme Court has yet to decide whether such racially based formulas are both legal and constitutional. Surely they are divisive and unfair to applicants -- both black and white -- who took the test in good faith and did well. Some will be bumped to the bottom of the list because of their race; others will have their very real qualifications and achievements questioned because of the pref Richey is not the only one who is uncomfortable with racial quotas. The revised plan should eliminate them.