Bakke Wins, Quotas Lose

But the divided Supreme Court endorses affirmative action based on race

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Eleanor Holmes Norton, head of the Equal Employment Opportunity Commission, confidently asserted last week that the Bakke decision would make no difference in the effort to achieve hiring and promotion goals. "My reading of the decision," she said, "is that we are not compelled to do anything differently from the way we've done things in the past, and we are not going to." Many businesses report that EEOC officials pressure them to hire additional women and members of minority groups but do not mention specific numbers. This means the companies have to estimate what numbers will satisfy the bureaucrats who administer the law. "It's like saying, 'Wrong, guess again,' " observes an industrial relations official at a company that must deal with eleven affirmative-action officials, each with his own set of goals.

The Supreme Court will presumably have to deal with these conflicts, for several pending cases will test the Government's use of preferential treatment in employment. The Communications Workers of America have petitioned the Supreme Court to review a costly agreement between the Federal Government and American Telephone and Telegraph Co. By setting ambitious goals for the promotion of women and minorities, the Government violated seniority rights as well as the 14th Amendment, the union charges. In another case, California building contractors have sued to overturn a requirement of the Public Works Employment Act of 1977 that 10% of the federal grants go to minority businesses. A U.S. district court ruled that the provision was a violation of both the 14th Amendment and Title VI. Wrote Judge A. Andrew Hauk: "Affirmative action and goals are permissible; race quotas are not. It is as simple as that." Suits have also been brought challenging the federal program that establishes goals for employment of minorities by federal contractors. In the case of Weber vs. Kaiser Aluminum, an applicant sued Kaiser and his union for excluding him from a job-training program in which half the openings were reserved for minorities. The Fifth Circuit Court of Appeals ruled in Weber's favor.

Some experts criticized the Supreme Court for not coming to grips with these problems as part of the Bakke ruling. "It was a landmark occasion, but the court failed to produce a landmark decision," said Yale Law Professor Bruce Ackerman. The key weakness in the court's ruling, he added, was the failure to define what proof of past discrimination would be needed to justify preferential treatment. "The question that wasn't talked about is: What is the role of numbers in proving past discrimination? Do you have to show actual intent to discriminate, or is the fact that there are no blacks in the work force, enough? There is a body of law on this issue, but it is confusing and obscure. We have not heard the last word on this by any means."

Virtually everyone acknowledges that the issue is far from settled.

Litigation will continue, perhaps at " faster pace. "The Supreme Court has not stopped something," says former U.S. Solicitor General Robert Bork, who now teaches law at Yale. "It has started something." Probably more white males will be tempted to file suit against affirmative-action programs on the grounds that they are really hidden quota systems.

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