Second Class Citizens

"THE CITY ATTORNEY LOOKED AT ME," SUSAN REEVES recalls, "and he said, ‘Little lady’-even though I’m five feet eight inches tall, he called me little lady- ‘blacks congenitally do not like to fight fires.’ "

The year was 1975. The place was Birmingham. And Reeves could sense that settling her class action suit to bring more blacks into the lily-white fire department and other city agencies was not going to be easy.

It got easier in time, through a combination of tough litigating and black power at the ballot box. Reeves, who was Birmingham counsel for the Washington, D.C.-based Lawyers’ Committee for Civil Rights Under Law, her colleague Stephen Spitz, and her former colleagues at the Justice Department won one round in the case and started another. After Richard Arrington, Jr., became Birmingham’s first black mayor in 1979, the case moved toward settlement.

Finally-or not so finally, as it turned out-in a May 1981 consent decree the city, the black plaintiffs, and the Justice Department agreed on a sweeping citywide affirmative action plan that forced rapid hiring and promoting of blacks in city government.

Since 1981 this consent decree has become the focus of a legal and ideological war that produced a major Supreme Court decision this June, allowing white fire fighters to go forward with a challenge to the decree’ preferences for blacks in promotion.

That war was intensified by a bitter brawl between the Reaganized Justice Department, which switched sides and sought to eviscerate an affirmative action consent decree it had signed in 1981, and a pro bono team from New York’s Cravath, Swaine & Moore headed by partner Robert Joffe.

Cravath charged in early in 1984 to battle the department and help black fire fighters defend their promotions under the decree. It threw massive resources into the case and took after the Reaganites with righteous wrath and the kind of aggressive New York litigating style that had seldom been seen in Birmingham.

ZERO-SUM GAME

In its fifteenth year the Birmingham employment discrimination litigation provides a wide view of how racially preferential affirmative action operates in practice-its benefits and its costs. The litigation gives clues as to where similar cases are headed as the Supreme Court’s conservative majority recasts civil rights law, and shows how the Court’s hair-splitting distinctions and abrupt reversals of direction since 1970 have put employers like Birmingham in a no-win situation.

The course of the litigation also shows how affirmative action efforts, grounded in the need to dissipate a legacy of brutal racial subjugation, can become a sterile zero-sum game: Rather than compensating black victims of job discrimination or training blacks handicapped by poverty and poor education to compete effectively for good jobs, courts and policy makers often simply set aside jobs and promotions for them at the expense of blue-collar whites.

The Birmingham consent decree was approved in 1981 by federal district judge Sam Pointer, Jr., of Birmingham, a highly respected Nixon appointee considered to be liberal on racial issues. The judge said the decree was a "fair, adequate, and reasonable compromise."

Mayor Arrington approved the deal even more heartily. The black plaintiffs had settled for what he called a "modest amount" of back pay, giving up huge monetary claims to get strong affirmative action preferences over whites. Recalled Arrington in a 1985 deposition: "I thought it was the best business deal we had ever struck."

"I KNOW HOW THEY GOT THEIR JOBS"

White fire fighters James Henson and Ronnie Chambers, both 41, don’t see it that way. They are among dozens of fire fighters who scored much higher on written, daylong tests than blacks who were promoted ahead of them. They say the consent decree has made them feel like second-class citizens, deeply resentful and demoralized. The decree has hurt the work of the department, they add, by putting unqualified blacks in supervisory positions.

"I can understand that blacks had been historically discriminated aeainst," says Henson. "I can also understand why people would want to be punitive in correcting it. Somebody needs to pay for this. But they want me to pay for it, and 1 didn’t have anything to do with it. I was a kid when all this went on."

Chambers is especially bitter. He says that he "threw everything I had into trying to get promoted" and that the "devastating" effect of losing out because of his race "has affected my whole attitude toward life." He says he speaks to black officers only if spoken to, because "I know how they got their jobs." Inside his locker he keeps the card he got seven years ago recording his test scores as "a constant reminder every day that I go to work." Henson eventually won promotion to lieutenant and captain. Chambers did not.

Carl Cook is a 43-year-old black fire lieutenant whose promotion is under challenge by white fire fighters and the Justice Department. He says the whites "don’t have anything to gripe about because they’re still living off what their forefathers did."

As a child Cook went to segregated schools, rode in the backs of buses, and drank from blacks-only water fountains. In 1964 he sought a job in the all-white fire department. "They said, ‘We don’t have anything,’" he recalls, "which I later found was not true, except that they were not hiring any blacks."

Cook finally got a job as a Birmingham fire fighter in 1974. He has this to say about the whites’ reverse discrimination complaints: "I look at that like I would look at a bank robber, and this guy has taken the money and he’s gone and he’s bought a house in one of the exclusive sections of town, and he’s bought his teenager a Mercedes or Jaguar. And then all of a sudden the law comes, and says, ‘Wait a minute, we’ve got your picture. You’re the one that robbed that bank. So we’re going to confiscate your house, your car, your clothes.’ And then the family stands there and says, ‘Well, you can’t do that. We didn’t rob the bank. You got him; he robbed it."

"So whites are saying, ‘Yeah, they did ’em wrong, there’s no doubt about that, but we don’t want to do anything to help correct it. It wasn’t our fault. I wasn’t here.’ Well, okay, if it wasn’t your fault, and if you weren’t the recipient of what your forefathers did, or whatever, then, why… when we take a test, [do] you always come out number one?"

NATIONAL SPOTLIGHT

The dispute came into the national spotlight on June 12, when the Supreme Court breathed new life into the whites’ reverse discrimination suit, Martin v. Wilks. In a 5-to-4 decision that led the front pages of The New York Times and The Washington Post, the Court ruled that white employees may bring lawsuits challenging the legality of judicially approved affirmative action consent decrees even if they knew about the consent decree proceedings and failed to seek timely intervention.

Chief Justice William Rehnquist wrote the opinion for the new conservative majority, which rejected the view of most federal appeals courts barring such "collateral attacks" on consent decrees. To Rehnquist’s former law clerk Charles Cooper, who had helped engineer the Justice Department’s much-criticized reversal as a deputy in the Civil Rights Division, this was "a huge vindication."

But the big winner was Raymond Fitzpatrick, Jr., a jocular, self-deprecating young lawyer who had kept the white fire fighters’ claims alive when many wished they would fade away. He takes pride in beating "the slick folk at Cravath " in the Supreme Court, and now entertains "the thought of possibly paying off my mortgage" with court-awarded fees if he prevails on the merits.

The merits-the legality of the decree’s strong preference for blacks in promotions-remain to be tried; the Supreme Court sent the 15-year-old litigation back for another contentious journey through lower federal courts. Its ruling, together with other major decisions this year undercutting affirmative action preferences, was widely denounced by liberals as a callous back-of-the-hand to the aspirations of blacks and other minorities. Black leaders like NAACP executive director Benjamin Hooks met the decisions with such an outpouring of vitriol that one might have thought the Court had revived the Jim Crow laws. The Wilks decision was an attempt "to hide racism under a cloak of legalism," contended the Reverend Joseph Lowery, president of the Southern Christian Leadership Conference.

BULL CONNOR’S TOWN

Many who care about racial justice found it especially galling that the Court was siding with the good old white boys of Birmingham-a town once called "a symbol of segregation for the entire South" by Martin Luther King, Jr.

This was the town that Bull Connor made famous in 1963 by deploying dogs and violent jets of water from fire hoses against peaceful demonstrators, Carl Cook among them. This was a town that had advertised certain jobs on a "whites only" basis until the mid-1950s, a half-black town that had only hired its first black fire fighter in 1968 and its second in 1974.

The case is worth a second look, however. Details that were unmentioned or buried in the wooden prose of Rehnquist’s opinion may make the majority’s solicitude for the white fire fighters understandable. The details suggest that the white fire fighters-guilty, at most, of staying too long on the sidelines while the city was bartering away their interest in future promotions-had never received a square adjudication of their discrimination claims because Judge Pointer effectively bound them to the consent decree without their consent. "Now I get my day in court," says Robert "Kenny" Wilks, 41, one of the whites.

As for the merits, the evidence and the findings made by Judge Pointer in dismissing the whites’ reverse discrimination suit conclusively establish that the city has reached its goals for rapid promotion of black fire fighters by promoting blacks, some at best marginally qualified, over whites who had far higher scores on the highly competitive written tests and far more relevant experience and training. In doing so, the city has systematically closed its eyes to the relative qualifications of blacks and whites.

Arguably the city had to do something like this to meet the consent decree’s goal of giving blacks 50 percent of each year’s promotions to lieutenant until the department mirrored the local labor pool, which is 28 percent black.

Giving blacks every other promotion to lieutenant meant promoting nine times as large a percentage of the black fire fighters as of the whites at first, because less than 10 percent of the fire fighters were black when the decree was signed.

How much, if any, of this kind of reverse discrimination is legally and morally justifiable as a remedy for this city’s-or any city’s-legacy of racial oppression will be much debated as Martin v. Wilks grinds ahead.

Such issues have been much de¨bated already, of course, all over the country. But in recent years the debate has been dominated by the stridency of the Reagan Justice Department’s attack on all race-conscious measures to help minorities, led by Reagan’s civil rights chief, William Bradford Reynolds, and his deputy, Cooper, and by some black leaders’ insistence on using uncritical acceptance of affirmative action preferences as a litmus test of one’s commitment to civil rights.

In this militant atmosphere it has been too easy for moderates and liberals, repelled by the absolutist rhetoric of Reynolds, Cooper, and former attorney general Edwin Meese III, to dismiss their contentions that affirmative action goals often go much farther down the road of reverse discrimination against whites than their advocates care to acknowledge.

So forget, for the moment, the Justice Department and the now-departed Reynolds and Cooper. Consider how promoting by race has worked in the Birmingham fire department, formally known as the Birmingham Fire and Rescue Service Department.

THE NUMBERS GAME

Since 1945, under Alabama law, the city has made promotions from a list certified by the Jefferson County Personnel Board, an independent civil service agency which has ranked candidates for fire department promotions by taking their scores on the daylong written tests, which measure fire-fighting and management techniques, and adding one point for each year of seniority, up to 20 years.

For years before the 1981 consent decree, the city almost invariably filled vacancies by promoting those highest on the list, in order. Subjective evaluations by superior officers of candidates’ work experience and leadership potential typically played a role in determining who qualified to take the tests, but not in choosing among those who passed, in order to avoid claims of unfairness and favoritism.

No blacks at all were promoted to fire lieutenant or higher positions before the 1981 consent decree. The virtual exclusion of blacks from all fire fighter jobs before the 1970s prevented most of them from gaining enough seniority by 1981 to qualify for promotion; the few with enough seniority did not do well on the test.

After the consent decree the personnel board (which signed a related consent decree) began giving the city two separate lists of candidates certified for promotion. One included the top-ranked candidates, who have invariably been white; the other included the highest-ranked blacks to pass the test.

From August 1981 through 1988, the city promoted 28 blacks and 32 whites to lieutenant, generally on an alternating basis, to meet the decree’s 50 percent interim goal.

In 1983, for example, 95 white and 18 black Birmingham fire fighters took the lieutenant’s test; 89 whites and nine blacks passed. Two of the whites and three of the blacks were promoted to lieutenant. In making the promotions, the city chose the whites who ranked first and second in combined scores (test scores plus seniority points), then passed over 76 other whites to promote the blacks who ranked eightieth, eighty-third, and eighty-fifth. If seniority points had not been added, the highest-ranking black would have been sixty-third.

In the same year, 29 white and three black Birmingham fire lieutenants took the captain’s test; 27 whites and one black passed. The city promoted the three top-ranking whites and passed over the 24 other whites to promote the black. He had the lowest passing score.

"LEVEL PLAYING FIELD"

Among those competing on the 1983 lieutenant’s test were James Henson, a white, and Carl Cook, a black. Henson was ranked sixth on the register with a test score of 192. Cook was eighty-fifth with a score of 122. Henson had six years of seniority. Cook (one of the more senior blacks) had nine. Henson had passed the test for driving the department’s trucks, had successfully completed advanced training in fire science and medic work, and had experience as a medic and suburban fire fighter. Cook had none of these qualifications.

Cook was promoted to lieutenant. Henson was not. Neal Gallant, the fire chief, a white man who was in the fire department in the days of Bull Connor, explained his method of complying with the consent decree in a 1985 deposition taken by Fitzpatrick:

Q. Did you compare the qualifications of the individuals on these two lists to each other?

A. I did not.

Q. Did you make any determination of whether any of the individuals on the two lists were better qualified than each other?

A. I did not.

Q. Were there any other factors that you considered in selecting Davis, McGuire, and Cook?

A. A. None.

Q Other than where they were on the list and the fact that they were black?…

A. The number that they were on the list and to fill the affirmative under the consent decree.

Q. Which was to promote blacks?

A. Promote blacks.

This is the system described by Mayor Arrington, Gallant’s boss, as designed "to create a level playing field for people of all races and all genders in terms of employment," in order to "put behind us this old bitter fight about race."

In court papers the city’s outside counsel, James Alexander, a partner at 119-lawyer Bradley, Arant, Rose & White, Birmingham’s premier firm, has suggested that any effort to compare the qualifications of black and white candidates would hinder achievement of the goals for black promotions: "A mandatory obligation to develop and implement a job related selection procedure to assess relative qualifications is hardly consistent with accelerated promotion of blacks as contemplated by the remedial provisions of the decree."

The decree does not mandate promotion of "unqualified" blacks. But Henson, Chambers, and other white fire fighters claim the department’s work fighting fires and doing the emergency medical calls that comprise 60 percent of its runs has been hurt because some black officers did not know their job.

"When the fire truck shows up at your house you see a good mix of black and white faces, but because just about the only criteria for promotions was race, the quality of the service has suffered," says Henson. I’ve seen things that just were awful, officers who didn’t know how to operate equipment they are supposed to train their men how to operate, officers who can barely write a legible report."

Carl Cook, the black lieutenant who was promoted over Henson, calls such complaints "a lie." While other white fire fighters voice complaints like Henson’s, they do not cite any instances in which buildings have burned down or lives have been lost because of mistakes by black officers.

PASSING THE TEST

The city argues vigorously that all promoted blacks have been qualified. But the need to promote enough blacks to meet the decree’s numerical goals has caused a relaxation of the standard for determining whether candidates are minimally qualified.

The city has taken the position that any fire fighter who passes the personnel board’s promotion test is presumptively qualified. But there is evidence that the passing score was set low to enable more blacks to pass the test.

After grading the 1982 lieutenant’s test, the first to be given under the consent decree, the personnel board set a passing score at a level calculated to provide "a suitable register of black candidates for Birmingham in order to comply with provisions of the consent decree," in the words of an internal personnel board document. In that year 91 percent of all candidates were given passing scores; in 1980, the year before the decree, only 64 percent of the candidates passed.

The consent decree also reduced the amount of fire-fighting experience needed to be eligible to become a lieutenant from four to two years and eliminated the traditional requirement that test takers be found qualified by supervisors. These two race-neutral changes helped clear the way for rapid promotions of blacks, because so few had more than two years’ seniority in 1981 and because blacks had been disproportionately screened out on the "promotional potential" evaluations by members of the then all-white officer corps.

But even such race-neutral steps would not have been sufficient to achieve significant integration of the fire department’s officer ranks. It is only by taking account of race that Birmingham has been able to promote any significant number of blacks.

If promotions had been made either on the basis of the pre-consent decree system or on the basis of written test scores alone over the past eight years, there still might not be a single black among Birmingham’s 100 fire lieutenants and 50 higher-ranking officers.

Judge Pointer found in January 1986 that, but for the consent decrees, "none of the black promotees would have been certified for the promotions they ultimately received."

And James Alexander, who negotiated the consent decree for the city, says that "at most a handful," and perhaps none, of the blacks would have scored high enough on the written test to have won promotions even if test scores alone had been considered.

THE TOOL OF TESTING

Why do blacks score so much lower than whites on the written promotion tests? This is a national phenomenon. David Rose, the Justice Department’s top career employment discrimination lawyer from 1969 to 1987, who helped goad Susan Reeves into suing Birmingham, summed up the data in a recent article: "For most standardized tests of ‘aptitude,’ ‘intelligence,’ or ‘cognitive ability’…the average black score is in the bottom one third of white scores; only 16 percent of the black scores are in the top one half of the white scores; only 6 percent of the black scores are in the top one third of the white scores; and only I percent of the black scores are in the top one tenth of the white scores."

These data are attributable largely to the inferior schooling and disadvantaged family backgrounds that handicap many blacks in this country; in Birmingham in particular, many black fire fighters attended segregated schools.

In addition, some of the blacks say that white fire fighters who have taken the tests before help those who are studying identify questions likely to be asked. Some of the white fire fighters say they study harder than the blacks. "It’s not because they aren’t smart enough," says Charles Brush. "It’s that they don’t have to put the effort in because they’ll get promoted anyway."

When viewed in light of the history of oppression of blacks in Birmingham and the nation, these huge racial disparities in written test scores make it enormously difficult to devise any procedure for choosing among competing candidates for promotion that both blacks and whites can accept as fair.

Some blacks, like Carl Cook, who says his outspokenness has caused him constant trouble with superior officers, fear that white supervisors would discriminate in evaluating blacks: "People on the review board are people that [are picked]. It’s kind of like the Supreme Court; Reagan picked whom he wanted."

On the other hand, whites like Ronnie Chambers suspect that supervisors under pressure to promote a quota of blacks would not give whites a fair shake, especially those of them who have sued the city for reverse discrimination. "When they see my white mug up there…and remember I was one of the original ones on the suit," Chambers says, "they can just throw me in the shitcan."

A "MINOR" BURDEN

Wilks, a plaintiff in the reverse-discrimination suit, favors the traditional emphasis on written test scores. "We’ve always been under a merit system," he says, "where they tell you, ‘These are the books you study, and this is the test you’re taking, and how you do is where you come out.’ As far as I’m concerned that’s about the fairest way to do it."

Wilks took the fire lieutenant’s test in 1982, 1983, and again in 1984, buying more than 20 detail-crammed books that candidates were told to use to prepare. "I studied all year, and two weeks before each test I would take time off from work and do nothing but study," he says. "My family would kind of hate me because I’d become kind of a hermit."

In each of those years Wilks barely missed the cutoff for promotions from the "white" list and was passed over in favor of lower-scoring blacks.

Jackie Barton, a 40-year-old black fire captain who was preferentially promoted to lieutenant ahead of Wilks in 1985, based on the 1984 test, discounts the significance of the scores. "Some people can perform much better on the job than they can retain a book," he says.

That war was intensified by a bitter brawl between the Reaganized Justice Department, which switched sides and sought to eviscerate an affirmative action consent decree it had signed in 1981, and a pro bono team from New York’s Cravath, Swaine & Moore headed by partner Robert Joffe.

ZERO-SUM GAME

"I KNOW HOW THEY GOT THEIR JOBS"

NATIONAL SPOTLIGHT

The dispute came into the national spotlight on June 12, when the Supreme Court breathed new life into the whites’ reverse discrimination suit, Martin v. Wilks. In a 5-to-4 decision that led the front pages of The New York Times and The Washington Post, the Court ruled that white employees may bring lawsuits challenging the legality of judicially approved affirmative action consent decrees even if they knew about the consent decree proceedings and failed to seek timely intervention.

The merits-the legality of the decree’s strong preference for blacks in promotions-remain to be tried; the Supreme Court sent the 15-year-old litigation back for another contentious journey through lower federal courts. Its ruling, together with other major decisions this year undercutting affirmative action preferences, was widely denounced by liberals as a callous back-of-the-hand to the aspirations of blacks and other minorities. Black leaders like NAACP executive director Benjamin Hooks met the decisions with such an outpouring of vitriol that one might have thought the Court had revived the Jim Crow laws. The Wilks decision was an attempt "to hide racism under a cloak of legalism," contended the Reverend Joseph Lowery, president of the Southern Christian Leadership Conference.

BULL CONNOR’S TOWN

THE NUMBERS GAME

From August 1981 through 1988, the city promoted 28 blacks and 32 whites to lieutenant, generally on an alternating basis, to meet the decree’s 50 percent interim goal.

"LEVEL PLAYING FIELD"

Q. Did you compare the qualifications of the individuals on these two lists to each other?

A. I did not.

Q. Did you make any determination of whether any of the individuals on the two lists were better qualified than each other?

A. I did not.

Q. Were there any other factors that you considered in selecting Davis, McGuire, and Cook?

A. A. None.

Q Other than where they were on the list and the fact that they were black?…

A. The number that they were on the list and to fill the affirmative under the consent decree.

Q. Which was to promote blacks?

A. Promote blacks.

PASSING THE TEST

Judge Pointer found in January 1986 that, but for the consent decrees, "none of the black promotees would have been certified for the promotions they ultimately received."

THE TOOL OF TESTING

A "MINOR" BURDEN

In each of those years Wilks barely missed the cutoff for promotions from the "white" list and was passed over in favor of lower-scoring blacks.

Barton can remember sneaking out of school and "throwing rocks at fire trucks in the ’63 riots when Martin Luther King was down here…I got knocked down by the water several times from those fire hoses." He learned fire fighting in the Air Force and decided to "be the best at it, or try." Coming home to a different Birmingham, he joined the fire depart¨ment and hit the books hard for the promotion tests.

On the 1984 test Barton had a score of 70.93 and seven seniority points for a combined score of 77.93; Wilks had a score of 84.54 and 16 seniority points for a combined score of 100.54. When five whites and five blacks were promoted in 1985 on the basis of that test, Barton, with the eighty-sixth-highest combined score but the fourth-highest black score, made the cut; Wilks, with the ninth-highest combined score, did not.

Wilks finally made lieutenant on his fourth try, in 1986. But he has not caught up with Barton, who is his boss. Were it not for the consent decree, Wilks might be a captain by now, and Barton would not be an officer at all.

Maybe Barton was as well qualified to be an officer as Wilks, or better qualified. But Wilks knows that he ranked higher-much higher-in the only nonracial comparison that was ever made between them. And that eats at him. "I felt I was mistreated and it wasn’t right," adds Wilks. "1 believe middle-class people are the ones who have to suffer from this affirmative action-the middle-class white male."

This is what Robert Joffe’s brief for Cravath in the Eleventh Circuit in 1986 dismissed as a "minor" burden on passed-over white fire fighters.

When Wilks is told that lawyers for the city and the blacks say the kind of learning measured by the written tests has little to do with fire fighting, he jabs an angry finger toward his interviewer. "I’ve got twenty-one books to study to learn my job. I’ve got to know my job just as well as a lawyer. [A fire fighter] may not go to college….You’ve still got to have the knowledge, or you’re going to get somebody hurt or killed," Wilks says. Relations between preferentially promoted black officers like Barton and white subordinates like Wilks and Charles Brush, the other lieutenant working under Barton, are correct but frosty.

Brush is president of the local fire fighters union bringing the reverse discrimination suit. Barton, president of the Birmingham Brothers Association, an organization of black firefighters, is one of the many blacks who have resigned from the local. "I found out they were hiring a lawyer with my dues to keep me from being promoted," he says. "So I got out."

But Barton says he has not encountered overt racial discrimination in the department. He adds, "Whatever you feel for the next guy, when you’re called upon you’re going to be as one. You live with this guy one hundred sixty-five days out of the year. You might feel all kinds of animosity toward him. But once you’re called upon you’re not going to forget your job."

PRIMING THE PUMP

For a time there may have been no way to bring black fire fighters like Barton into the officer ranks without some injustice to whites like Wilks. Maybe it was necessary to put a race-conscious finger on the scales, at least for as long as it took to develop a promotion procedure less dependent on written tests that screen out all or nearly all blacks.

But why such a heavy finger? Why did the consent decree call for giving blacks 50 percent of the promotions to lieutenant at a time when they comprised only 10 percent of the fire fighters?

Sitting under a big, broad brimmed black hat at an outdoor restaurant down the street from Reeves and Still, her two-person law office, Susan Reeves sizes up the question from behind opaque wraparound sunglasses. "What we were trying to do," she says, "was to bring blacks into the system as a pump-priming device…Part of it was to disestablish the reputation that blacks need not apply here… It gives blacks an opportunity from the government that has long controlled them and their families."

Reeves had been in the Justice Department’s Civil Rights Division in the early 1970s. She was preparing to move back to Alabama to open an employment discrimination litigation practice for the Lawyers’ Committee when David Rose, her boss, showed her a brochure with pictures of Bir¨mingham’s fire fighters.

"They were all white," she recalls. "And Dave Rose said, ‘Somebody needs to do something about this.’ And I moved to Birmingham and I did something about it."

The first thing she did was sue the city and the personnel board for employment discrimination in 1974 on behalf of a class of Birmingham blacks and women. A similar suit was brought in 1975 by the Justice Department. The cases were consolidated before Judge Pointer.

By that time Birmingham was a different place than in 1963. Bull Connor’s assaults on the demonstrators had been his last stand; later in 1963 he was replaced by a more moderate city government. By the mid-1970s the mayor of Birmingham was David Vann, a progressive Democrat who had clerked for Justice Hugo Black.

Racism had hardly been banished from Birmingham, of course. But Judge Pointer found in 1977-after a 1976 trial on entry-level tests for fire fighters and police officers-that the personnel board had made good-faith efforts at least since 1965 "to provide nondiscriminatory opportunities for black applicants" and "to rectify the racial balance in local government employment." Pointer found no recent intentional discrimination by either the city or the board.

He did find, however, that the board’s entry-level tests for police officers and fire fighters had an illegal disparate impact because blacks failed in greatly disproportionate numbers and the tests were not sufficiently job-related.

The judge ordered the personnel board to certify blacks for jobs as police officers and fire fighters at a rate commensurate with the black percentage in the applicant pool.

No white job-seekers have ever mounted a serious challenge to these race-conscious hiring goals. Fitzpatrick calls them "pretty moderate and reasonable," although the goals conflicted with the Reagan Justice Department’s crusade for "colorblind" employment standards and could be said to discriminate against white candidates.

At a second trial in the case, in 1979, Reeves, her colleague Spitz of the Lawyers’ Committee, other counsel for the black plaintiffs, and the Justice Department focused their attack on the disparate impact of promotion procedures throughout the city’s work force. Judge Pointer never decided the case because after the trial the parties entered settlement negotiations.

THE BIG TRADE-OFF

By 1979 Birmingham had a black mayor, Arrington, who was more than receptive to the dose of affirmative action sought by the black plaintiffs. And they had a good case.

The plaintiffs and the Justice Department signed separate settlement agreements with the personnel board and the city in May 1981. The decrees contained sweeping affirmative ac¨tion goals for hiring and promotions of blacks and women in many city agencies. They included a long-term goal of mirroring at all levels the county’s 28 percent black labor pool and "interim" goals of giving blacks preferences, including 50 percent of all entry-level hires as fire fighters and police officers and 50 percent of all promotions to fire lieutenant and police sergeant until the long-term goal was reached.

The big trade-off during the negotiations, Reeves recalls, was "money for jobs": The black plaintiffs settled for only $265,000 in back pay from the city and $35,000 from the person¨nel board-a fraction of the city’s po¨tential liability-in order to obtain strong racial preferences in hiring and promotions, regardless of whether those preferred were victims of job discrimination. "Bear in mind we were facing about five million dollars or so in potential exposure," says Alexander, the city’s outside counsel.

What the parties saw as a reasonable settlement, the white fire fighters saw as a sellout of their career aspirations to pay someone else’s debts.

The city has not gotten off as cheaply as it anticipated, however. It has paid Alexander’s firm several times the $265,000 in back pay to defend the reverse-discrimination litigation.

And thanks to Fitzpatrick, the Justice Department, and the Supreme Court, there is no end in sight. If the white fire fighters win, the city could be liable for hundreds of thousands of dollars in back pay. Fitzpatrick, who charges the union a cut rate averaging less than $50 an hour, which is all it can afford, says that if he prevails on the merits he expects to ask Judge Pointer to hit the city for more than $2 million in fees.

A "YOUNG, GREEN LAWYER"

Fitzpatrick was 27 years old and two years out of Birmingham’s Cumberland School of Law on August 3, 1981, when he voiced the objections of the mostly white Birmingham Firefighters Association and two union members to the consent decree’s promotion goals at a "fairness" hearing the judge held to determine whether he should approve the decree.

By his own description a "young, green lawyer without any support staff," he told Judge Pointer at the hearing that "I feel a little bit like a fish out of water here with all these eminent government attorneys," and explained that he could not file his motion to intervene until the next day. "It may be a little late, but I am hearing you," the judge said. "I wrote it out yesterday, but 1 didn’t have anyone to type it," Fitzpatrick noted.

Fitzpatrick’s motion was precisely one day too late, according to a brief Cravath was to file later in the Supreme Court; it said that if the union had sought to intervene "before the fairness hearing, its motion should have been granted."

The judge’s denial of the motion to intervene as untimely was affirmed on appeal, thus depriving the white fire fighters of any direct appellate review of the legality of the racial preferences in the decree. For reasons apparent to nobody at the time, that was a fateful turn in the litigation

If Fitzpatrick had been allowed to intervene in 1981 and had lost on the merits, white fire fighters might have been barred from attacking the decree’s legality thereafter on the ground that their interests had been adequately represented in the original consent decree litigation.

Now the Supreme Court has ruled they can attack the decree directly. And after eight years of Reagan judicial appointments, the whites’ chances of eventually prevailing are a tot better than they would have been if the reverse-discrimination issue had been fully litigated in 1981.

In his August 21, 1981, opinion upholding the consent decree, Judge Pointer noted that the record provided "more than ample reason" for the city to settle to avoid liability for disparate-impact discrimination against blacks in hiring and promoting. He said the city’s history of discrimination, the gross under representation of blacks in its work force, and the disparate impact of the tests and other hiring and promotion procedures gave the black plaintiffs a strong case. Pointer noted that the decree would "accord preferential treatment to blacks" and "might operate to benefit individuals who personally never were the victims of any discrimination by the city or to disadvantage those who personally never were the beneficiaries of such discrimination." But he said this did not make the decree invalid, because it preserved "a substantial opportunity for whites and males to be hired or promoted."

Fitzpatrick and the white fire fighters did not give up. After entry of the decree they filed a series of motions and separate lawsuits objecting to the city’s passing them over to promote blacks with lower test scores and less seniority.

A transplanted New Yorker via Florida, Fitzpatrick cheerfully volunteers that his law school grades weren’t good enough to get him a job at a big firm; he is now practicing at a three-lawyer firm, Mason & Fizpatrick, in Shelby County, outside Birmingham. He is highly praised by his clients and Justice Department allies; some adversaries say he has grown with the case and won their respect after a shaky start.

"I don’t think there is one lawyer in a thousand who would have done for his clients what Ray did for his," says Mary Mann, a Reagan political appointee who took over the case for the Justice Department in 1984 after it had allied with Fitzpatrick. "He fought and fought and fought. Ray wrote to Congress. Ray wrote to the president. Ray wrote to the Justice Department. He never gave up."

"TIE-BREAKER THEORY"

What turned the case into an ideological donnybrook was the Reagan Justice Department’s switching sides. Richard Ritter, a career lawyer in the Civil Rights Division, was technically acting on behalf of the Reagan administration when he signed the proposed decree on May 19, 1981. But three days later Attorney General William French Smith announced in his first major civil rights speech that the administration would firmly oppose use of "racial quotas" to remedy past discrimination.

On August 3, 1981, a few days after William Bradford Reynolds was sworn in as civil rights chief, Ritter told Judge Pointer that the decree’s racial preferences were "fair, reasonable, and lawful." Before long Ritter’s new boss would transform the division from the most effective advocate into the most bitter adversary of such racial preferences. Reynolds would also seek to gut the consent decree Ritter had signed.

The Birmingham case presented Reynolds and his sidekick and ideological soulmate Charles Cooper with a dilemma: The Justice Department was contractually bound to support and defend its consent decree against the white plaintiffs. And the decree was quite obviously intended to require the kinds of racially preferential promotions that Reynolds and Cooper abhorred as immoral and unconstitutional. Reynolds says he never would have signed the decree, a rather typical Carter administration measure.

The Reynolds-Cooper solution was ostensibly to defend the decree while seeking to undermine its intent through strained interpretation and endorsing the white lire fighters’ rights to challenge it directly. Taking the second paragraph of the decree out of context, they argued that the rest of the decree could not mean what it seemed to say.

That paragraph says the decree should not "be interpreted as requiring the city to … promote a less qualified person, in preference to a person who is demonstrably better qualified based upon the results of a job-related selection procedure."

The Reynolds-Cooper "tie-breaker theory," as it was called, was that the decree did not permit the city to promote a black over a demonstrably better-qualified white and that whites could prove themselves better qualified on the basis of test scores, seniority, work experience, and training. Reynolds and Cooper say such an interpretation was the only way to save the decree from being struck down as unconstitutional.

But their theory conflicted with the language and history of the consent decree and the views of everyone who had been involved in negotiating and approving it, including Ritter, who flatly contradicted his political bosses’ interpretation in a 1985 deposition taken over their vigorous objections by Cravath’s Joffe.

The more plausible reading of the intent of the decree, the one eventually adopted by Judge Pointer, was that neither the second paragraph nor any other provision protected whites against preferential promotions of less qualified blacks. The paragraph, he says, was designed only to give the city the option of declining to promote demonstrably less qualified blacks.

LEGAL SNIPING

The Justice Department intervened in the reverse discrimination suits in early 1984 as a "nominal" plaintiff, at the invitation of Judge William Acker, a Reagan-appointed conservative ideologically in tune with Cooper and Reynolds. Some of the white fire fighters’ suits had been randomly assigned to Acker, others (including the first filed) to Pointer, who had approved the consent decree.

The white plaintiffs wanted to litigate before Acker; the city and the black promotee-intervenors preferred Pointer. Acker, complaining about "judge shopping," rejected three motions by the city and the blacks to consolidate all the cases before Pointer. Then Pointer granted the same motions in April 1984, wresting control of the litigation from his more junior colleague.

"I remember the Cravath lawyers dancing in the hallway outside after Pointer granted that motion," recalls a lawyer who was there.

Reynolds handled the case in an extraordinary fashion, using political appointees to take it over from career attorneys Ritter and Rose, who ordinarily oversaw employment cases. As Rose recalls it. Cooper assumed supervision of the case from him, and Mary Mann, an old friend of Cooper’s who was politically appointed as "special litigation counsel," stepped into Ritter’s lead litigating role.

"Cooper proposed it and neither of us opposed it," recalls Rose, who had advised against the tack Reynolds and Cooper took in the case. Ritter, who was said by others to have been extremely upset with the way Reynolds dealt with the case, declines to comment. Rose left the Civil Rights Division in 1987 to enter private practice in Washington, D.C; Ritter is still at Justice.

The new Justice Department team soon established a working alliance with Fitzpatrick and eventually joined seven of his fifteen challenges to black promotions. Lawyers on the other side were furious at what James Alexander, the city’s outside counsel, called the Justice Department’s "perfidy" and what Joffe of Cravath called its "duplicity." Cravath, by that time, had been called in by the Lawyers’ Committee to reinforce Spitz and Reeves and take on the Reagan administration.

Fueled by ideological passion and personal dislike, the sniping among the lawyers in the case, at depositions and in briefs, soon seemed to surpass even the bitter resentments the reverse discrimination dispute had touched off among whites and blacks in the fire department.

Joffe says Fitzpatrick’s case would never have gotten off the ground but for the Reagan Justice Department’s "outrageous" and "frivolous" effort to scuttle its own consent decree. "The Justice Department stirred up a kind of’ South shall rise again’ sentiment among the white employees," he says.

Pouring enormous resources into the case, Cravath battled the Justice Department from the 115 depositions in Birmingham to the 1984 Senate hearings that led to rejection of Reynolds’s proposed elevation to associate attorney general. As of this summer, the firm had logged more than 2,200 partner hours, 17,500 associate hours, 11,000 paralegal hours, and $450,000 in disbursements in the case, according to Joffe. He says this "would have been well in excess of three million dollars in lawyers’ time alone" if billed at the firm’s standard rates.

AD HOMINEM ATTACKS

Alexander was if anything more furious than Cravath at the Justice Department for switching sides. He said in court papers that the department had "litigated in bad faith" and "lied to the court … about the intent of the parties in entering the decree." And Judge Pointer said in early 1985 that the department "has advanced arguments that appear to be contrary to its obligations under the decree and inconsistent with positions it pressed so vigorously in the earlier litigation."

Reynolds says Cravath’s attacks on him were politically motivated and legally counterproductive: "It was a personal attack that I think was designed as a smokescreen to detract from the fact that the legal position they were advancing was suspect. We found their briefs more amusing than anything. … It was not particularly good lawyering."

Cravath did not endear itself to Fitzpatrick and his clients by dismissing their reverse-discrimination suit as "baseless harassment" and seeking $1.37 million in fees from them, as well as from the Justice Department. (Judge Pointer had earlier said he would grant no fees, but Cravath made a fee application to preserve the issue for appeal; Joffe says it will give any fees it may win to charity.)

"Joffe said at closing at the trial that only the government’s participation has given ‘the patina of respectability’ to this case," Fitzpatrick recalls. "I was personally incensed at that, that our case was somehow less than respectable, was somehow dirty. The Cravath people have always looked down on me."

Fitzpatrick also complains that Cravath used harassing and delaying tactics in depositions. He adds that "they were pretty rough on Mary [Mann]," who was the top Justice Department lawyer regularly on the scene. Now in private practice in St. Petersburg, Florida, Mann says Cravath’s lawyers "drowned everybody in paper," grossly overstaffed the case with three to five lawyers at depositions and many more jamming the courtroom at trial, and engaged in crude obstructionism at depositions while living in high style, flying back and forth to New York first-class and tooling around Birmingham in rented Cadillacs and Lincolns.

"One of the lawyers on Cravath’s team was George Whipple," Mann adds, in a mocking tone. "George Carroll Whipple the third. … His picture appeared in Mademoiselle magazine as one of the most eligible bachelors in the United States. He was right next to Don Johnson of Miami Vice. … He had a little red racing car, a toy car with a clock in it, and during depositions he would rev it up and race it down the table and annoy everybody. He would beat his head against the wall, lots of theatrics, unnecessary objections, and stall tactics."

Whipple, who left Cravath two years ago to become a freelance photographer in New York, dismisses the charges of inappropriate behavior as "nonsense." As for Mann’s mockery of his pedigree, he says, "The first George Whipple was the Reverend George Whipple, who was an abolitionist minister and devoted his entire life to freedom for the slaves and equal rights for black Americans. My family has been involved in the civil rights movement for one hundred fifty years and I’ve been involved in it my entire life. I’m extremely proud of the work that we did in Birmingham, and I’m extremely grateful to Cravath for allowing me to participate in a lawsuit that I believed so deeply in."

Joffe rejects Mann’s charges of obstructing depositions and overpopulating them with lawyers; the real problem, he says, was that the other side was "essentially harassing the black officers" with prolonged questioning. "Most of the time we flew People Express," not first-class, he says, adding "Whipple had a Cadillac, which he assured me he had rented from some agency at rates that were no higher than the Hertz or Avis rates for an economy car. It was not a brand-new vehicle."

ON TO TRIAL

After many months of such acrimonious discovery and pre-trial maneuvering, Judge Pointer held a five-day trial in December 1985.

The judge had ruled earlier that the white plaintiffs were barred from challenging the legality of the consent decree itself and could win only by proving the disputed promotions had not been mandated by it, Fitzpatrick and the Justice Department thus sought to prove that black promotees were "demonstrably less qualified" than passed-over whites. They showed that many of these whites had much higher test scores than the black promotees and more experience and advanced training in fire fighting and emergency medical techniques.

But Pointer ruled after the trial, in January 1986, that these criteria were a useless "hodgepodge." Adopting Cravath’s proposed findings of fact and conclusions of law almost verbatim, he said that the decree permitted promoting qualified blacks even over "demonstrably better qualified" whites-and that in any event, the whites could not be proven better qualified because the city had no valid, job-related way of comparing the qualifications of black and white candidates. Catch-22.

The judge held that the traditional system of ranking candidates for promotion based on test scores and seniority points, which was still being used to rank white candidates against other whites and blacks against other blacks, could not be used to rank whites against blacks. The judge avoided determining the tests’ validity, finding, implausibly, that the city-which had never requested the test scores from the personnel board-had no way of knowing candidates’ exact scores.

Judge Pointer also dismissed the whites’ advantages in experience and training as an "impermissible criterion for comparing promotional qualifications." He found that "seniority-based criteria are suspect" because of prior exclusion of blacks and that "subjective criteria for evaluating promotions may be affected by the vestiges of such discrimination or the attitudes" of white supervisors. The judge said there was no direct evidence proving that fire fighters with better experience and training would be better officers.

Pointer’s detailed findings of fact showed, however, what an engine of reverse discrimination the consent decree had become, in fact if not in law. He found that "had each plaintiff been black, he would have been promoted to the position which he claims was illegally denied to him." He held that the city had made no effort to compare relative qualifications of blacks and whites and had no duty to do so.

While ruling that the promotions were required by the decree, Pointer also said in passing that the decree is "lawful." Cravath would later argue, on appeal, that this meant the judge had already given the whites a full adjudication of the legality of the decree, so they were not entitled to another bite of the apple.

The Eleventh Circuit and the Supreme Court, which considered only the issue of whether the white plaintiffs could challenge the legality of the consent decree, were not persuaded. Both ruled that Judge Pointer’s dismissal of the white fire fighters’ case had been infected by his "mistaken view" that their claims "were barred to the extent they were inconsistent with the consent decree," as Rehnquist put it.

Susan Reeves, who watched the Supreme Court argument in the case this January, says she sensed things going badly for her side when Justice Antonin Scalia observed that "if two people are litigating over which of them owns my house … I’d feel pretty bad if I were obliged to live by whatever the outcome is."

Scalia has a good point. White fire fighters typically do not have firms like Cravath, Swaine & Moore on retainer, ready to leap into any litigation that might affect their interests. They should not be forever barred from challenging a deal just because they failed, by as little as a single day-if Cravath’s Supreme Court brief has it right-to seek timely intervention in somebody else’s lawsuit.

"LOSERS NO MATTER WHAT?"

What happens now in Martin v. Wilks? "When does this stuff end? It just goes on and on," says Stephen Spitz of the Lawyers’ Committee. Dozens more may do so. The key question, of course, is whether the decree stands or falls. If it falls there will remain questions of remedy-such as back pay for whites whom the city passed over to comply with the decree-and fairness. Should previously promoted blacks, for example, be demoted to make way for victims of reverse discrimination?

Whatever happens to the consent decree, the city will soon be embroiled in a whole new set of problems. As of this year, it has reached the decree’s long-term goal of 28 percent black representation among fire lieutenants and captains. That means the decree no longer provides any basis for preferential promotions of blacks into those jobs; moreover, the Supreme Court has suggested it is illegal to use such preferences to maintain racial balance once achieved.

But reverting to the traditional personnel board ranking system could bring promotions of blacks to a halt and provoke a new lawsuit. Thus, the city will be vulnerable to more reverse-discrimination suits by whites if it continues using racial preferences and to more suits by blacks if it ceases using them.

The tortuous course of the Supreme Court’s decisions in this area over the years has created a litigation nightmare for employers like Birmingham. This year’s decisions in particular expose them to liability to whites for having adopted preferences that earlier decisions seemed to say were necessary to avoid liability to minorities and women.

"That worries us very much," says James Baker, the city attorney since 1978. "Are we going to end up being losers no matter what we do?"

Fitzpatrick says the city would not be in such a pickle now if it had developed a fair promotion procedure that could withstand legal scrutiny.

What should happen now is what should have happened in 1981: additional compensation and retroactive seniority for identified victims of past discrimination; a short-term goal of promoting blacks in rough proportion to their percentage in the pool of qualified fire fighters; and an urgent priority on developing a more job-related promotion procedure.

The new promotion procedure should have been, and should be, less dependent on written tests and seniority than the old one. It should begin with a special, intensified program to train all candidates in job-related tasks in order to offset any disadvantages stemming from inferior education or lack of experience, and should end with a competition to measure which candidates perform those tasks best.

Such a procedure, suggested by Brad Reynolds among others, should be more accessible to blacks than the old one, although it almost certainly would not advance blacks into the officer ranks as fast as the grossly disproportionate racial preferences the city has been using.

The case could (but probably won’t) be settled based on a reasonable hunch that the consent decree will eventually be held invalid to the extent that it led to preferential promotions of blacks in excess of their percentage in the pool of qualified fire fighters. The Supreme Court has not clearly barred such disproportionate hiring or promotion preferences for nonvictims of past discrimination. But its decisions appear to be drifting in that direction. They should be, for the reasons given below.

Accordingly, the city should offer retroactive promotions, seniority, and back pay to the 20 or 30 white fire fighters who would have been promoted, or promoted sooner, if the racial preferences in the consent decree had been more limited in scope. The United States should contribute money to the remedy, having pressed the city to adopt racial preferences and then attacked it for using them. The city should negotiate Ray Fitzpatrick down from more than $2 million to a reasonable fee award.

Nothing should be taken from the black promotees. While some probably should not have been promoted, that is not their fault, and it would be unfairly punitive to snatch away their gains at this point. It is better to have a temporary plethora of fire lieutenants.

The city and the personnel board should commit to ending use of racial preferences and supplanting them with a better promotion procedure. The settlement should be submitted for approval as a consent decree; black employees should be joined in a defendant class action to guarantee and bind them to the full adjudication that the whites were denied the first time around.

The cost of such a settlement would be substantial: a few hundred thousand dollars in back pay, a fee for Fitzpatrick’s estimated 6,000 to 10,000 hours of work, and future salaries for more fire officers than the city really needs. But all that would probably add up to a lot less than the various contestants have spent litigating so far, let alone what they will spend if the case grinds on. And at least this time the burden of the remedy would be borne by the public rather than by a few dozen fire fighters.

The approach suggested above would please neither purists of the "color-blind" approach to racial issues, like Reynolds, nor devotees of aggressive use of racial preferences.

Reynolds, Cooper, Scalia, and other conservatives object with some cogency to any use of racially preferential goals as a corruption of the idea of nondiscrimination. The evidence suggests, however, that in Birmingham, which is 55 percent black, this was the only way to break the grip of past discrimination and get any substantial number of blacks into the officer ranks in the near term. And as long as the officer corps remained all-white, it could not be counted on to give black fire fighters a fair shake in allocating the best assignments and [raining opportunities or in evaluating their performance on the job. Under these circumstances, short-term numerical goals may be the only way to guard against continuation of discrimination.

The main problem with the consent decree was not its use of racial goals but the gross disproportion between the percentage of blacks being promoted and the much lower percentage of blacks in the fire fighter ranks. This guaranteed that the goals-quotas, really, as the city implemented them-could be met only by the rawest kind of reverse discrimination against better-qualified whites.

The decree also provided the city with strong disincentives to develop a fair and job-related promotion procedure to supplant promoting by race.

Under Mayor Arlington the city has been only too happy to pursue a policy having little to do with compensating identified victims of past discrimination or with promoting equality of opportunity between individual candidates for promotion; the goal was, rather, simply to "promote blacks," as Fire Chief Gallant put it in his deposition.

Cravath’s Joffe argues that a goal allocating only a proportionate share of the promotions to blacks "would not have created a remedy" for past discrimination. That’s true.

The way to provide remedies for victims of past discrimination is to give back pay, retroactive seniority, and other individual relief to any blacks who can show they personally were victims of past discrimination; Carl Cook, for example, says he was barred from getting a job as a fire fighter because of his race when he first applied in 1964.

The consent decree’s preferences provided no more "remedy" for actual victims of the city’s past job discrimination than would the Reynolds approach. In fact, the decree slighted the interests of those blacks who were actual victims of discrimination by leaving them largely uncompensated. This was the essence of the deal: Hold down the city’s back-pay liability to discrimination victims in exchange for the city’s agreement to give strong job preferences to blacks generally.

Cases like this one have distorted the very definition of "remedy," which used to mean compensation or other relief awarded to the victim of a legal wrong at the expense of the person or entity that did the wrong. Now it has come to mean taking away opportunities from innocent whites like Kenny Wilks, who have not discriminated, and giving them to blacks like Jackie Barton, who have not personally suffered from job discrimination, as a "remedy" for prior discrimination against other, unidentified blacks, who themselves get no remedy at all.

ETTU, CRAVATH

Joffe argues that breaking the cycle of discrimination in a place like Birmingham requires more than a remedy for individual victims of past discrimination. "What you’re trying to do is make the fire department look in 1989 as if discrimination had never taken place," he says. And that approach requires promoting a disproportionately high percentage of blacks in the near term, Joffe argues. Judge Pointer adopted a finding-drafted by Cravath-that the numerical goals in the consent decree were intended to remedy not only past discrimination but also "underrepresentation" of blacks.

If the goal is to remedy "under-representation," what about places like Cravath, Swaine & Moore? The firm has never had a black partner and has five blacks among its 224 associates. According to Joffe, the firm has no affirmative action plan and takes a purely meritocratic, color-blind approach to the hiring ol associates and the making of partners.

Should Cravath integrate itself by aggressive race-based hiring and promoting of minimally qualified black attorneys-any who can pass the bar exam, for example-over whites who have better law school grades and do better written work? And what about Cravath clients like Time Inc. and IBM Corporation? Would Joffe recommend a regime of race-based hirings and promotions like Birmingham’s for them?

Certainly not. Joffe says the comparison is "very unfair," because unlike Cravath and its clients, "the Birmingham fire department was permeated with discrimination." Without the need to remove the vestiges of discrimination, "I would think this type of decree would be both illegal and offensive."

But from another perspective, the absence of blacks from the best jobs in elite institutions like Cravath and its corporate clients today derives from causes similar to some of those underlying the all-white complexion of the Birmingham fire department’s officer corps a decade ago.

Foremost among these causes are the educational and other disadvantages visited upon blacks by society’s legacy of discrimination-a legacy for which wealthy and powerful institutions like Cravath, for all its pro bono civil rights work in recent decades, bear at least as much responsibility as the blue-collar whites who bear the brunt of racial preferences.

The traditional selection criteria, at Cravath as at the fire department, ultimately depend heavily on written tests and other written exercises on which blacks do poorly.

Joffe asserts that "we certainly don’t hire on anything like grades alone" and that in making partners "we evaluate a lawyer’s performance over a wide range of activities." But as Cravath says in a March 1989 firm resume distributed to law schools, "We have always put a premium on hiring from among the most qualified law students in the United States."

It may be true that, as Joffe puts it, "academic performance up to a point may have more relevance to being a lawyer than to being a fire fighter," and that "the selection procedure at Cravath is job-related [while] the selection procedure that the fire department would use in the absence of the consent decree is not job-related."

But are these differences so drastic as to justify Cravath’s taking no account at all of race while it champions a Birmingham "remedy" that takes account of little else?

"I start out on the premise that there is no basis for telling who are the better fire fighters, and if you start out on that basis then the affirmative action doesn’t have the same pejorative overtones," Joffe says. "You’re assuming that one’s ability to study the books and come back and spit out the results makes him better able to fight a fire."

Right. Exclusive eliance on written tests makes little sense, but clearly they are of some value in a computer age in which technical knowledge is increasingly essential to successful management, especially of personnel whose jobs include emergency medical treatment and fighting chemical fires.

Perhaps "minimally qualified" employees are good enough for fire departments, which are responsible only for saving the lives and property of ordinary people, but not for big law firms, which are responsible for big clients and big deals and big suits and big piles of money.

But perhaps those who do not care to administer the strong medicine of racial preference to their own institutions should hesitate to prescribe such heavy doses for others.

"A TERRIBLE DILEMMA"

The Birmingham case shows that limited use of racial preferences may be a necessary evil for some time to bring blacks into the mainstream of American life. But it also shows that such preferences can become an unhealthy addiction, cementing the political bases of black elected officials like Arrington and salving the social consciences of privileged whites at the expense of blue-collar whites like Birmingham’s $27,000-a-year fire fighters, who are struggling to make the best of the only careers they have.

It was necessary and good in Birmingham to achieve a measure of integration in the fire department and its officer corps, in order to move away from old patterns of racial segregation and hierarchy and to give blacks a sense that American apartheid was being dismantled in more than name. The stark reality is that only the use of racial preferences made this possible, at least in the short run.

But the costs of using racial preferences as a sledgehammer to speed achievement of racial proportionality begin to outweigh the benefits at some point. Under its consent decree Birmingham has passed that point by utterly abandoning the principle of merit selection in headlong pursuit of racial proportionality.

The harms suffered by white victims of reverse discrimination in cases like this one pale by comparison with the deep and enduring wounds inflicted on black Americans by our legacy of racism. But sacrificing the career aspirations of blue-collar whites is not a healthy way to remedy the sins of others.

"Morally it’s a terrible dilemma," Susan Reeves acknowledges. "You’ve got a guy who’s never been discriminated against who’s been favored over a white guy who’s never discriminated."

It’s more than a moral dilemma. Overuse of racial preferences has shattered hopes for a national consensus on racial justice. It has created a large constituency for the blunderbuss attacks of conservatives on all race-conscious discrimination remedies, has aggravated the worrisome recrudescence of white racism now evident from college campuses to the political hustings, and has provoked a political and judicial reaction that is manifested by the decline of the Democratic Party and the current direction of the Supreme Court.

The costs of racial preferences also include the insecurities of those blacks who know or suspect that they owe their positions to race rather than merit, the demoralization of all concerned when minority group members are thrust into jobs that they have not been prepared to perform well, and the sense of entitlement to preferential treatment that creeps increasingly into the rhetoric of black leaders.

Across the economy the practice that the law has spurred employers like Birmingham to follow takes a toll on the productivity of a nation lagging dangerously behind international economic competition.

The excesses of affirmative action plans like Birmingham’s are in part attributable to an exaggeration, cultivated by the civil rights lobby, of the extent to which contemporary white racism and discrimination by employers is the reason for the persistent underrepresentation of blacks in good jobs, and of the extent to which the use of racial preferences can improve the situation.

There is still plenty of racism in this country, both conscious and unconscious. But the main impediments to blacks in the job market are their lack of personal contact with the family, social, and economic networks that ease access to job opportunities, and their poor performance in traditional merit selection processes like the tests used to evaluate candidates for positions in the Birmingham lire department.

The hard fact, from which liberals have averted their eyes for years, is that because of educational and cultural disadvantages caused by racial oppression in generations past, black people, on average, tend to be le.ss qualified for most good jobs than white people, measured by the attributes that most nondiscriminatory employers want their employees to have.

So why should the fact that, on average, blacks have had less success in winning coveted jobs and promo ions than whites necessarily be ascribed to illegal discrimination by employers, which must be "remedied" by aggressive use of racial preferences?

In the past two decades, the meaning of "discrimination," like that of "remedy," has evolved in ways that confuse analysis and foment loose and unfair imputations of racism to innocent employers using merit-based selection procedures.

"Discrimination" used to mean intentionally favoring whites over blacks and other minorities because of racial bias, without regard to individual merit. In colloquial usage the word retains that connotation. In the legal parlance of disparate impact litigation, however, by the 1970s "discrimination" came to include the use by employers with no racist intent of written tests and other criteria that they consider useful but that have the effect of screening out disproportionate numbers of blacks.

It is proper to impose liability for heedless exclusion of minorities through selection procedures with little or no relationship to job performance, because such employer practices shade into intentional discrimination and serve no important business purpose. But delegitimizing even the most job-related tests and the very principle of merit selection has become integral to the strategy of those seeking to clear the way for preferential hiring of minorities. Taken to its limits, this redefinition of discrimination converts civil rights law into an engine of discrimination against whites, by holding employers liable to minorities for failing to discriminate in their favor. This will not do.

The middle-class white backlash that was spurred by the excesses of affirmative action preferences and reverse discrimination helped elect Ronald Reagan president and gave him a chance to tip the Supreme Court’s balance.

Now it is tipping with a vengeance, as evidenced by the Court’s decisions this year in the Birmingham case and in other decisions restricting affirmative action. Civil rights groups are calling on Congress to tip the balance back.

To a limited degree it should. The Court may have gone too far in some of the cases, in particular Wards Cove Packing Company v. Alonio, which made it much more difficult for plaintiffs to win disparate impact suits. Overreacting to the undue readiness of some judges to infer discrimination from lack of racial proportionality, the Court shifted from employers to plaintiffs the burden of persuasion as to whether selection tools are job related; this may have made it too hard to win redress for victims of subtle forms of intentional discrimination and the kinds of heedless exclusionary practices that shade into it.

The cold-hearted, legalistic tone of the Court’s opinion in this and other decisions may also portend further, unwise civil rights retrenchments. But the liberal uproar over what the Court has done so far is overblown. The Birmingham decision was a justifiable response to excesses of affirmative action.

IN NEED OF CONGRESS

Congress should clarify the law of disparate impact and affirmative action to make it more predictable and fair to all concerned, it should give victims of intentional discrimination more effective remedies than those provided by existing civil rights laws as the Court has construed them.

It should refine the standard of proof in job discrimination suits by putting the burden back on employers to make a reasonable showing of the job-relatedness of selection procedures that have a disparate impact on blacks, without making the burden so heavy that employers will be driven to racial quotas.

But Congress should also consider barring courts from using hiring and promotion preferences except when necessary either to provide remedies for individual victims of discrimination or to guard against continuing discrimination and continuing exclusion of blacks. It should put tight time limits on such race-conscious measures and create stronger incentives for employers to supplant them with valid selection procedures, including training programs to offset the tendency of written tests and other traditional selection procedures to freeze blacks out.

Then Congress should do some thing about the most important rea son for racial stratification in the work force, the poor education that handicaps many blacks and other minorities. No amount of affirmative action or civil rights legislation will solve this problem. Nothing will really touch it short of a massive in vestment of money and other national resources to rehabilitate our educational system and to set up training programs for those whom the system has already let down.

Stuart Taylor, Jr.

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by Stuart Taylor, Jr