Replying in The Affirmative

By Richard Lacayo

The state troopers of Alabama have turned up at several points in the history of the civil rights movement, usually on the opposing side. In 1963 Governor George Wallace called them out to block school integration in Tuskegee. Two years later they were pummeling black demonstrators on the Selma-to-Montgomery freedom march. So it was less than surprising that when the time came to integrate themselves, they dragged their feet. The force totally excluded blacks as troopers until ordered to hire them in 1972 by a federal court. Then it dawdled in the face of subsequent court orders to promote blacks to higher ranks.

Today, although 27% of the 734 arresting officers are black, there are no blacks who rank higher than sergeant. In the U.S. Supreme Court last week, the issue of promotions ensured the troopers one more spot in the history books. In another in the maze of rulings that have defined the ground rules for affirmative action, the court upheld an intricate scheme aimed at compelling integration of the higher ranks. To prod the troopers to offer an acceptable plan, a lower court temporarily required the force to promote one black trooper for every white promoted to each rank, if there were qualified blacks available, until they constituted 25% of that rank. The 5-4 decision in the case, U.S. v. Paradise, marks the first time the Justices have ruled that a lower court may order strict numerical quotas in promotion. In other instances of serious discrimination, the court has approved racial preference in hiring, but it has shied from permitting it in layoffs.

The ruling represents another rebuff to the Reagan Administration by the high bench, which last term spurned the Justice Department's contention that affirmative action should be used only to remedy harm to individual victims of discrimination. This time the department, which brought the case to the Supreme Court when the troopers declined to appeal, argued simply that affirmative relief must be narrowly tailored, like "hand and glove." Solicitor General Charles Fried denounced the one-for-one quota as "excessive" and "profoundly illegal."

Writing the lead opinion, however, Justice William Brennan maintained that the Alabama troopers' discrimination was "pervasive, systematic and obstinate." That pattern, he said, "created a profound need and a firm justification for the race-conscious relief." In the past the court has looked with favor only on affirmative-action plans that minimize penalties to the innocent, but the harm to white officers in this case, wrote Brennan, was limited to the time necessary to achieve the integration goal and so "only postpones the promotions of qualified whites."

As always in affirmative-action cases, the court was sharply divided. Brennan's opinion was joined by Justices Thurgood Marshall, Harry Blackmun and Lewis Powell. Justice John Paul Stevens provided the fifth vote, but in a separate, seemingly more sweeping opinion stressed that in cases of proven discrimination, judges have "broad and flexible authority to remedy the wrongs."

Justice Sandra Day O'Connor, in a dissent joined by Chief Justice William Rehnquist and Justice Antonin Scalia, did not flatly reject promotion quotas. Echoing the Justice Department's concern about narrowly tailored solutions, | however, she pointed out there had been no consideration of alternatives, like imposing fines on the state. Agreeing with much of O'Connor's argument, Justice Byron White dissented separately.

Given the many opinions, even the losers sought to claim a partial win. Assistant Attorney General William Bradford Reynolds, the department's point man on affirmative action, argued that the court had said quotas will be the "least preferred remedial technique," to be upheld only "in those rare cases where you have egregious and flagrant discrimination." That sort of implacable response frustrates critics. After yet "another affirmative-action victory," says Civil Rights Attorney Richard Seymour, the Justice Department still seems to be "squandering resources on fruitless efforts to attack affirmative action. Fortunately, nobody is paying attention to them."

Even the winners in last week's case, however, have had to concede more general losses. "Employers have, with urgings from this Administration, begun to abandon affirmative-action recruitment and employment practices," says Julius Chambers, director-counsel of the NAACP Legal Defense and Educational Fund. He hopes the Alabama case will help to fight that trend. But while the court still seems willing to uphold affirmative action, many legal observers believe that forms of discrimination subtler than those practiced by the Alabama troopers will not produce the clear-cut cases that will persuade lower courts to impose quotas.

With reporting by Joseph N. Boyce/New York and Joseph J. Kane/Atlanta