Sins of Discrimination: Last Term's Affirmative Action Cases
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SINS OF DISCRIMINATION:
LAST TERM'S AFFIRMATIVE ACTION CASES
Kathleen M. Sullivan*
F EW issues are more starkly divisive in our politics than affirmative
action: its opponents wage an all-out war on preferential treatment
for blacks, invoking a norm of color-blindness; its advocates insist
that the norm of equality requires increased black representation in
our social institutions now. Yet every time a showdown over the issue
has seemed inevitable in the Supreme Court, both sides have been
left still standing when the shooting has stopped. Some affirmative
action measures have been voted up and some down, but through it
all, the Supreme Court has permitted no decisive victory to either
side, nor dealt either side a decisive defeat.
Last Term's affirmative action cases were no different. The Court
struck down one workplace affirmative action plan' and upheld two
others.2 And as the dust settled over the three cases, once again both
sides claimed to have won.3
The affirmative action plan struck down in Wygant v. Jackson
Board of Education4 was embodied in a provision governing layoffs
in a collective bargaining agreement between a teachers' union and a
public school district. Layoffs were to be executed in reverse order
of seniority, except that nonwhite teachers were to be retained ahead
of more senior whites in some circumstances.5 Laid-off white teachers
challenged the provision. By a vote of 5-4, the Court held that the
provision violated the equal protection clause.6
Assistant Professor of Law, Harvard Law School.
1 Wygant v. Jackson Bd. of Educ., i0E6L S. Ct. 1842, 1846 (1986).
2 Local 28, Sheet Metal Workers' Int'l Ass'n v. Equal Employment Opportunity Commission,
i0E6L S. Ct. 3019, 3031 (1986); Local No. 93, Intl Ass'n of Firefighters v. City of Cleveland, I0E6L
S. Ct. 3063, 3072 (1986).
3 Although Wygant struck down an affirmative action plan, civil rights advocates claimed
that the case broadly 'approved the use of affirmative action goals.' N.Y. Times, May 20,
1986, at A20, col. 4 (quoting attorney Barry Goldstein of the NAACP Legal Defense and
Education Fund). And although Sheet Metal Workers and Firefighters upheld affirmative action
plans, the Solicitor General, who had filed briefs in both cases urging that the plans be struck
down, claimed a limited victory nonetheless: 'We have said that race-conscious remedies which
are not victim-specific are never permissible,' [Solicitor General] Fried explained. 'The Court
has said: Not never, but hardly ever.' N.Y. Times, July 3, 1986, at B9, col. I.
4 i0E6L S. Ct. 1842 (1986).
5 See id. at 1845. Specifically, the agreement provided that 'at no time will there be a
greater percentage of minority personnel laid off than the current percentage of minority per-
sonnel employed at the time of the layoff.' Id.
6 No one opinion commanded a majority. Justice Powell, joined by Chief Justice Burger](ViewImageLocal?handle=hein.journals/hlr100&div=14&collection=&method=preview&ext=.png&size=3)
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Sins of Discrimination: Last Term's Affirmative Action Cases
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