Every time the Supreme Court issues a ruling on affirmative action, the groans begin: "unclear," "fudged," "muddying the waters." Can't the court give us a yes or no?
It can't, and a good thing too. Whether the court intended it or not, this issue, which exploded 15 years ago with so much passion and so much justice on both sides, is being compromised, fudged and muddied into submission. Perhaps even into some rough social consensus.
Consider the recent court ruling in the case of a layoff plan in Jackson, Mich. To protect recent black hiring gains, it called for laying off white teachers rather than black teachers with less seniority. A majority on the court held the plan unconstitutional. But the decision yielded no fewer than five opinions. Yet, sifting through the confusion, a position of reasonable compromise may be emerging.
The Reagan Justice Department would not be happy with this compromise. Its position is that race-conscious affirmative action should be permitted only to remedy specific cases of past discrimination against specific individuals. Accordingly, Justice wants to gut Executive Order 11246, which mandated preferences for minorities in federal contracting. And it keeps interpreting Supreme Court decisions (the 1984 Memphis firefighters case, now Jackson) as justifying this idea. But the Justice Department's view clearly does not command a majority of the court.
Sandra Day O'Connor, the swing vote in the Jackson case, held that race-consciousness does not require proof of past discrimination. A simple statistical discrepancy -- say, a lower proportion of black teachers than blacks available in the hiring pool -- might suffice to justify a race-conscious remedy. So (according to the Bakke decision) would a goal as innocent as "the promotion of racial diversity . . . in higher education."
What idea, then, is emerging? In Supreme Court talk, it goes by the name of "narrow tailoring." Wrote Justice Lewis Powell, courts "should give particularly intense scrutiny" to "a nonracial approach or a more narrowly tailored racial classification" system to promote affirmative-action goals. A race-conscious remedy must be something of a last resort. And even then, the least pernicious form of race-consciousness should be chosen.
Like what? Everybody has his own idea of what is pernicious and what constitutes narrow tailoring. But consider the pattern. First in Memphis, now in Jackson, the Supreme Court seems loath to permit affirmative action that lays people off. On the other hand, even Powell, writing for the conservative plurality that struck down the Jackson layoff plan, concludes that "other, less intrusive means of accomplishing similar purposes -- such as the adoption of hiring goals -- are available."
Why hiring and not firing? First, because firing is too "intrusive" a burden: losing a job you already have is a far greater injury than not getting one you only want. But second -- and in my view more important -- because the burden of affirmative action in hiring "is diffused to a considerable extent among society generally" -- and thus is socially tolerable.
Laid-off whites are obviously identifiable. You can not only count them, you can see them -- out of work, angry and in court suing. A disappointed white job applicant, on the other hand, is generally far from sure that he would have gotten the job had there been no affirmative action.
Hiring, yes; firing, no. This suggests a rather odd and elegant rule of thumb: to determine whether reverse discrimination is permitted, the important point is not whether the original (black) victims can be identified -- the administration position -- but whether the current (white) victims cannot be identified. The idea is diffusion, to produce a truly "societal" remedy for the "societal" injury of racial discrimination, and to cushion blameless individuals from having to pay for the failings of the larger society.
The diffusion principle lies behind many other governmental policies. Consider the debate about the 55 mph speed limit. We know that raising it to pre-1973 levels will cause 2,000-4,000 excess deaths. Since these are statistical deaths only, it is still arguable (and argued) that the tradeoff is reasonable. If we knew in advance, however, the names and addresses of those who would give their lives so that others could enjoy faster interstate deliveries, the question would never even be discussed.
In the Jackson layoff case, we have the names and addresses of those paying the penalty. Hence the court's distaste for the "tailoring" of this remedy. Hence the invocation of the "diffusion" principle. It is an approach to race-conscious affirmative action that is, to be sure, not wholly satisfying. After all, if race-consciousness is wrong in principle, it should be wrong in hiring as well as firing. But diffusion does finesse the competing claims of minorities for redress and of whites for equal treatment. It considers not what remedy is just (both sides have good claims), but what remedy is socially tolerable.
The court has two other major affirmative-action cases pending this session. It will be interesting to see whether it can maintain its course of muddling through, wisely.