Law: Replying in The Affirmative

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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.