In the Supreme Court's recent afirmative action ruling in Wygant v. Jackson Board of Education, many who had unsuccessfully urged upon the court the arguments set forth in the dissenting opinions of Justice Marshall (joined by Justices Brennan and Blackmun) and Justice Stevens boldly proclaimed victory. William Raspberry, in an article worthy of much higher marks for journalistic style than for legal analysis "Reynolds Misreads Again," op-ed, May 28 , strained to make the point that the administration's position, which was largely adopted in Wygant, had been totally rejected by a majority of the court. There is, of course, another view.
In a 5-4 decision, the Supreme Court held unconstitutional a racial layoff plan agreed to by the teachers' union and the Jackson, Mich., school authorities in an effort to redress a problem of underrepresentation of black teachers in the public school system. The plurality opinion of Justice Powell (joined by the chief justice and justices Rehnquist and O'Connor), and Justice O'Connor's separate concurring opinion, set forth, in a most thoughtful and careful manner, a much-needed analytical framework for evaluating under the Constitution charges of discrimination against public employers and assessing when, if ever, racial classification procedures might be an acceptable remedial response.
What emerge from a considered reading of the opinions written or joined by the five justices who voted against the racial layoff plan -- the position successfully advanced by the United States -- are several clear principles of constitutional interpretation, all of which were urged upon the court by the United States:
The Equal Protection Clause protects individual (not group) rights, and its protections apply with equal force whether the claim of unlawful racial discrimination is raised by a minority employee (or potential employee) or operates "in reverse."
Before consideration can be given to possible use of a remedy that, in whole or part, classifies by race, there must exist provable discriminatory conduct (either reflected in court findings or grounded on hard evidence) on the part of the employer -- that is, actual discrimination against identifiable employees or applicants for employment.
Evidence of "societal discrimination," or of underrepresentation of minority "role models," is an insufficient base, in the eyes of a majority of the court, to establish a constitutional predicate for remedial action.
Even where unlawful discrimination is present and accounted for, use of a racial classification -- no matter how "benign" the remedial purpose -- will be subjected to the most exacting scrutiny, whatever the skin color of those favored or disfavored by the classification.
The relief selected must be "narrowly tailored" to accomplish two overarching objectives: (1) remedy the proven discrimination, and (2) do so in the manner that least intrudes on the rights of innocent third parties.
The racial layoffs employed in Wygant failed this constitutional test. As Justice Powell observed, it plainly was more burdensome on the rights of incumbent white teachers than one of the available alternatives (i.e., racial hiring goals).
Does Justice Powell's explicit reference to hiring goals, and Justice O'Connor's somewhat less explicit reference, suggest acceptance of such relief as a constitutionally preferred remedy? That question was not answered in Wygant. But whatever answer comes from future cases, it does appear from the opinion in this case that a comfortable majority of the court views racial classifications as the least favored remedial alternative -- usable only if they can survive the most exacting scrutiny.
In this connection, it is well to note that in fashioning "narrowly tailored" relief to correct the proven discrimination -- as is constitutionally required -- there will invariably be a number of alternatives deserving consideration. For example, Justice Powell observed in Wygant that, of the two options before the school board, racial hiring goals were less intrusive on the rights of white teachers in the Jackson school system than racial layoffs and thus were the constitutionally preferred remedy.
That particular remedy would, nonetheless, likely be considered constitutionally unacceptable by comparison with another available alternative that was not before the court in Wygant: an affirmative action package that requires recruitment and outreach programs aimed at increasing the number of qualified blacks in the applicant pool for new hires, and selection from that pool on a nondiscriminatory basis. Such a remedial approach -- while it goes beyond "the remedying of specific instances of identified discrimination," to use Justice O'Connor's phrase -- is indeed "narrowly tailored" to fit the violation, has proven to be effective in correcting racial discrimination in public employment matters, and is certainly less intrusive on third party rights than racial hiring goals.
The 5-4 decision in Wygant most definitely did not answer all the questions in the "affirmative action" area, and so the debate continues. But a majority of the court did for the first time provide a tight, analytical framework for assessing the constitutional issues involved, and that will help measurably in resolving future cases.
What comes through most clearly is that we have a Fourteenth Amendment that applies equally to all individuals in this country, whatever their race, color or ethnic background, and without regard to group membership. And before any racial classification will be constitutionally tolerated, there must be the most compelling reason -- a proven wrong that cannot be remedied by any other less intrusive affirmative action means. That is a very encouraging step toward what Justice Stevens correctly identified, in dissent, as "our ultimate goal . . . 'to eliminate entirely from government decisionmaking such irrelevant factors as a human being's race.' "