Law: Replying in The Affirmative

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."