Challenges To Affirmative Action Stand Supreme Court Refuses To Strike Down Two Lower Court Victories For White Employees

With affirmative action emerging as a dominant political issue, the U.S. Supreme Court on Monday let stand two lowercourt victories for white employees who challenged programs to accelerate advancement of blacks.

Legal experts said the court’s decision not to issue a ruling in the affirmative action cases may indicate it is willing to let lower courts scrutinize traditional affirmative action programs more closely.

“At a time when affirmative action is so hot politically in the legislative branch of the federal government - and with states trying to jump on the bandwagon, too - I’m not surprised the Supreme Court is just going to let things lie for a while,” said Christine Godsil Cooper, a professor at Loyola University Law School.

Juries and some lower courts are starting to be more sympathetic to the claims of white employees that affirmative action plans amount to illegal discrimination under the 1964 Civil Rights Act and the equal protection clause of the U.S. Constitution.

“What this means, in my view, is that the Supreme Court seems to be satisfied with the way lower courts are taking a hard look at affirmative action and striking down those plans that clearly step over the line,” said Raymond Fitzpatrick, lawyer for a group of white firefighters in Birmingham, Ala., who successfully challenged the city’s program to promote black firefighters.

With a history of past discrimination - less than 2 percent of the city’s Fire Department was black in the 1970s - Birmingham agreed to a plan in 1981 to increase employment and promote more African Americans.

Part of the plan called for promoting qualified blacks to half of all lieutenant openings until 28 percent of the lieutenants were black. That was the percentage of blacks in the local work force.

Fourteen white firefighters challenged the plan in 1982, and the Supreme Court ruled in 1989 that they could go ahead with their claim. A federal District Court upheld the Birmingham plan, but the 11th U.S. Circuit Court of Appeals ruled last year that it set unlawful quotas.

The second affirmative action decision involved a Pittsburgh man’s challenge of the promotion of a black engineer. A jury ruled that the Duquesne Light Co. unfairly discriminated against the white man and awarded him $420,000. A federal appellate court upheld the verdict.