THE VARIETY of headlines across the country Tuesday morning concerning the latest Supreme Court decision on affirmative action reflected the fact that the court is still working its way through this issue and is not yet prepared to come up with general guidelines on when this affirmative action can be applied. The justices invalidated an affirmative action plan in Jackson, Mich. that called for laying off white teachers with tenure in order to preserve the jobs of nonwhites who were still on probation. But in doing so, it issued five separate opinions, in which writers went beyond the facts of the Jackson case to discuss other aspects of affirmative action. Reading the opinions like tea leaves, lawyers sought to discern the position of various justices on future cases, with special weight being given to Justice O'Connor's concurring opinion, since she is viewed as a critical swing vote on this question. As a result, those who oppose numerical goals in employment focused on their victory in the Jackson case, while civil rights forces, reading the more general language of the opinion, quickly claimed that in losing a battle they had won the war.
This much is clear: The court held that there must be convincing evidence of prior discrimination by a public employer, such as the Jackson school board, before any kind of racial classification can be used to remedy that discrimination. Four justices agree that racially based layoffs, as opposed to hirings, are in general too burdensome on a small group of innocent workers to be justifiable -- a view that makes sense and seems only right to us. Justice O'Connor limited her agreement to the facts in the Jackson case.
*This can be inferred: A clear majority of justices would, in some cases, support the use of goals and quotas in hiring if this remedy were necessary to correct past discrimination. And a majority would reject the administration's position that affirmative action can be used to help only the actual victims of discrimination and not a class. These were not questions before the court in the Jackson case, but are assumptions based on assertions made in the opinions.
Two affirmative-action cases will be decided by the court this term. One involves a union's failure to adhere to a court-ordered hiring plan. The other centers on the difficult issue of race-conscious promotions. The pieces of this complicated puzzle are slowly being put together in the court, and by July, more of the picture will be completed. This week's issue was settled wisely, we believe, for the distinction between layoffs and hiring goals is a valid one, in human as well as legal terms.