It comes as no surprise that the assistant attorney general for civil rights reads the latest Supreme Court ruling on the subject as in line with his own anti-affirmative-action views. William Bradford Reynolds reads every ruling on affirmative action as in line with his perverse views.
Still it must have taken special reading skills for him to find comfort in the case of the Jackson, Mich., schoolteachers. The court ruled last week that black teachers, hired under an affirmative action plan, could not be protected against layoffs while white teachers with more seniority were laid off.
Most experienced observers seem unsure of the long-term implications of the ruling. Not so Reynolds, who has concluded that 1) it applies to hiring and promotions "to the same extent" as it applies to layoffs, 2) that the court has embraced his view that racial preferences are valid only in cases where there is proof of discrimination against individuals, and 3) that it calls into serious question the requirement, roundly opposed by Reynolds, that federal contractors hire qualified women and minority workers in rough proportion to their availability in the labor pool.
Justice Lewis F. Powell Jr., writing for the court majority, made clear that he distinguishes between hiring and layoffs when it comes to affirmative action.
"We have recognized [in previous cases]," he wrote, "that in order to remedy the effects of prior discrimination, it may be necessary to take race into account. As part of this nation's dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy."
But he noted that none of the cases in which this principle was upheld involved layoffs.
"In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose."
Chief Justice Warren E. Burger and Justice William H. Rehnquist joined in that opinion, which seems not to support the Reynolds view.
Justice Sandra Day O'Connor, joining in part, noted in addition that the court "has forged a degree of unanimity; it is agreed that a plan need not be limited to the remedying of specific instances of identified discrimination for it to be deemed sufficiently 'narrowly tailored,' or 'substantially related' to the correction of prior discrimination."
Justice Byron R. White, concurring, offered no opinion, except by indirection, on the hiring goals. But he did say: "Whatever the legitimacy of hiring goals or quotas may be, the discharge of white teachers to make room for blacks, none of whom has been shown to be a victim of any racial discrimination, is a different matter."
If Reynolds reads "whatever the legitimacy" to mean that White doubts the legitimacy of hiring goals -- by no means an obvious interpretation -- then maybe he can twist that doubt into a splinter of support for his own views.
Certainly he gets no support from the remaining four justices, all of whom, dissenting, would have upheld the layoff scheme as well as the hiring plan. Justice Thurgood Marshall, joined by Justices William J. Brennan Jr. and Harry A. Blackmun, noted that the "sole question posed" by the Jackson case was "whether the Constitution prohibits a union and a local school board from developing a collective-bargaining agreement that apportions layoffs between two racially determined groups as a means of preserving the effects of an affirmative action hiring policy, the constitutionality of which is unchallenged."
That takes care of eight of the nine justices. The ninth, Justice John Paul Stevens, put it this way: "Rather than analyzing a case of this kind by asking whether minority teachers have some sort of special entitlement to jobs as a remedy for sins that were committed in the past, I believe that we should first ask whether the board's action advances the public interest in educating children for the future. . . .
"There is, however, a critical difference between a decision to exclude a member of a minority race because of his or her skin color and a decision to include more members of the minority in a school faculty for that reason."
Reynolds reads the ruling in the Michigan case to prove that the court majority agrees with him, that race-specific hiring, except in cases where individual victims of discrimination can be found, is unconstitutional. I have scoured the range of opinions, exceptions and dissents and cannot find a shred of evidence that even one of the justices agrees with Reynolds.