Accent on the Affirmative

By Richard Lacayo

In the eight years since the landmark Bakke case, the U.S. Supreme Court has tacked back and forth unpredictably on the issue of affirmative action, prompting Reagan Administration lawyers and liberal civil rights activists alike to claim that the results really favored them. Last week, in what may prove to be a decisive course marker, the court struck down by a 5-4 vote a Michigan school-district plan that sought to protect minority hiring gains by laying off white teachers ahead of blacks with less seniority. It was a decision with a bit of something for everyone.

The Reagan Administration could, and did, take satisfaction from the majority's view that the mere fact of discrimination in American life is not in itself a constitutionally sufficient reason for resorting to an affirmative-action remedy. "It is a terrific opinion in our judgment," said Justice Department Spokesman Terry Eastland. But after reviewing the splintered opinions, most experts agreed with Justice Sandra Day O'Connor. She concluded that the Justices have "forged a degree of unanimity" on a key rebuff to a much bruited claim of the Reagan Administration. It has argued that affirmative action is appropriate only to remedy discrimination against specific individual victims. By O'Connor's reading, however, the court is prepared to approve "a carefully constructed affirmative-action program," which "need not be limited to the remedying of specific instances of identified discrimination."

Whatever it meant in the larger struggle, the outcome meant victory for Wendy Wygant and the other white teachers who brought the suit after being laid off in 1981. On hearing the news, she says, "we whooped it up a little." Most had already been rehired, but they may now press for back pay. The layoff plan had been necessary, the Jackson board of education had contended, to assure enough minority role models for its minority students. Lewis Powell, joined by Chief Justice Warren Burger and William Rehnquist plus O'Connor, disagreed. In their view, a minority preference plan could have been justified only by a showing of prior discrimination in the hiring of teachers within the district. "This court never has held that societal discrimination alone is sufficient to justify a racial classification," Powell said. Insisting as well that any affirmative-action plan must be "narrowly tailored" to achieve its ends, he went on to signal an inclination to reject race-based firing schemes for being too harsh on the innocent, but to look more favorably upon some hiring plans. A brief separate concurrence by Justice Byron White also stressed an aversion to layoff plans.

The four dissenters were satisfied that the district's actions were constitutionally acceptable. And while the majority was not prepared to go this far, the Justices across the board seemed plainly supportive of some race-based solutions. Powell wrote that "in order to remedy the effects of prior discrimination, it may be necessary to take race into account." That could mean, he added, that "innocent persons may be called upon to bear some of the burden of the remedy."

The sum of these positions, says Paul Bender, dean of the law school at Arizona State University in Tempe, "makes things better for affirmative action." But for which plans? The next tests will come shortly. The Justices have two more major cases on the subject to decide by July, one involving fire-department promotions in Cleveland, the other the imposition of a minority-membership goal on a New York City union. Last week's decision would seem to bode well for those and other affirmative-action schemes. But William Bradford Reynolds, the combative Assistant Attorney General for Civil Rights, insisted that he could still hear the Justices playing his tune. Because they had required a showing of prior discrimination before the use of racial preferences, Reynolds now contends that a 1965 presidential order authorizing minority employment goals for Government contractors must be largely abandoned.

The court last week also okayed official spying in the sky. Dante Ciraolo had high double fences around his backyard in Santa Clara, Calif. Even so, police acting on a tip were able to spot the 73 marijuana plants growing in the yard--by flying overhead in a chartered plane. Dow Chemical Co. had even more elaborate security precautions at its plant in Midland, Mich. So the Environmental Protection Agency also sent up an airplane, to get pictures as part of an inspection of the site. In two 5-4 decisions, the Supreme Court ruled that neither search from the skies required a warrant.

Warren Burger, who wrote both majority opinions, stated in the California case that although residential yards are ordinarily fully covered by the privacy safeguards of the Fourth Amendment, it was unreasonable to expect such protection for activities that are "visible to the naked eye" by police "traveling in the public airways." In the Dow case Burger went further, saying that a factory area was not comparable to a private yard, and that the $22,000 magnifying camera used by the EPA was not in the same league as high- tech snooping devices that might require a search warrant. The majority's course worried Lewis Powell, who spoke for the dissenters in both cases. The failure to protect privacy rights, he said in the Dow decision, "will permit their gradual decay as technology advances."

With reporting by Jay Branegan/Washington