The U.S. Supreme Court, reviewing the tricky little case of the Jackson, Mich., schoolteachers, decided Monday that it sometimes makes sense to do a little race-specific tilting when it comes to hiring, but that it is usually a good idea to be race-neutral when it comes to layoffs.
That is not how the court put it, of course. The opening line of Justice Lewis F. Powell Jr.'s majority opinion described the case before the court as "whether a school board, consistent with the equal protection clause, may extend preferential protection against layoffs to some of its employees because of their race or national origin."
But after laying out an acceptable constitutional basis for hearing the case, the justices proceeded to deal with it as human beings: on the basis of simple fairness and what, to their minds, makes sense.
Their conclusion -- that hiring is one thing, layoffs another -- is probably as good as you could hope for, unless you're one of those "strict constructionists" who believe that if the Framers didn't mention television or computers or affirmative action, then the court shouldn't read these things into the Constitution.
In 1972, the Jackson school board, reacting to racial tension in the community, hammered out an agreement with the local education association that called for bringing the percentage of minority teachers in line with the percentage of minority students. In order to protect the newly instituted faculty integration against layoffs, it added a provision calling for proportional layoffs, rather than a simple seniority system, in case staff reductions became necessary.
A few years later, it became necessary to lay off some teachers. In keeping with the carefully constructed agreement, some black teachers were retained while some whites with more seniority were laid off. Some of the whites sued , and on Monday they won.
The Supreme Court majority, writing like lawyers but reasoning like wise human beings, determined that it makes sense for a governmental unit to practice some degree of race preference in order to correct earlier racial discrimination by that same unit, but that generalized "societal" discrimination is "too amorphous a basis" for awarding race preference. There had been no showing that the Jackson Board of Education had ever discriminated on the basis of race.
But, no doubt to the dismay of the Reagan Justice Department, the court made clear that it would countenance preferential hiring to correct past discrimination, even without the necessity of proving that individual applicants had been discriminated against.
The majority opinion went on to say, however, that while race-conscious hiring can sometimes be appropriate, race-conscious layoffs are another matter. "Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job," Powell wrote.
The minority opinions were equally founded in common sense. Justice Sandra Day O'Connor, concurring, noted that the school board was "trapped between the competing hazards of liability to minorities if affirmative action is not taken to remedy apparent employment discrimination and liability to nonminorities if affirmative action is taken."
Justice Thurgood Marshall, dissenting, acknowledged that the layoffs were unfair, but said "unfairness ought not be confused with constitutional injury." He noted, quite pragmatically, that the court majority "would nullify years of negotiation and compromise designed to solve serious educational problems in the public schools of Jackson, Mich."
Justice John Paul Stevens, also in dissent, noted the value of "role models" as one reason to maintain staff integration. "It is one thing for a white child to be taught by a white teacher that color, like beauty, is only 'skin deep'; it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process."
In short, the justices, in ways that would horrify Ed Meese, refused to be bound by what the Framers of the Constitution may or may not have had in mind, choosing instead to view the case before them in the context of what makes sense in the real world. Their conclusion -- that affirmative action remains a valid approach but one that ought to used judiciously, and with a view to fundamental fairness -- makes sense to me.