Quotas, Again

The court hears Weber

Standing on the steps of the U.S. Supreme Court last week, a white Louisiana Cajun in a powder blue suit struggled to maintain a faint smile. Reporters barraged him with questions; an angry black woman glowered at him. It was all slightly overwhelming for Brian Weber, 32, a man who says he wants nothing more than to be a general repairman at a Louisiana chemical factory. But to many people Weber personifies the sticky question of reverse discrimination. He had come to the unfamiliar setting of the nation's high court to hear oral arguments in a case, Kaiser Aluminum vs. Weber, that will make his name as well known as Allan Bakke's. In Bakke the court outlawed explicit racial quotas for admission to universities receiving public funds; Weber tackles the more far-reaching issue of racial preference in employment.

Weber was rejected by craft-training programs at Kaiser's Gramercy, La., plant, in which half the places were reserved for minorities. The program had been established by Kaiser and the United Steelworkers, Weber's union, in 1974 to remedy racial imbalance in the skilled labor force. Less than 2% of these craftsmen were black, although blacks made up 39% of the local work force. During 100 minutes of oral arguments last week, Weber's lawyer, Michael Fontham, said that such an explicit racial quota violated Title VII of the 1964 Civil Rights Act, which bans job discrimination on the basis of race. "You mean you can't avoid discrimination by discriminating?" said Justice Byron White. "Yes, your honor," Fontham replied emphatically.

The union's lawyer, Michael Gottesman, contended that Congress wanted to outlaw only "invidious" discrimination. Said Chief Justice Warren Burger: "What you are saying is that you can discriminate for good motives, but not for bad motives." Gottesman responded that Congress had not intended to prohibit voluntary affirmative action, like the training program set up by the Steelworkers and Kaiser. If Weber wins, warned the company's lawyer, Thompson Powers, it "will literally end affirmative action."

The Weber challenge puts employers in a tighter spot than ever in efforts to correct past racial injustices. If they voluntarily set up programs to redress discrimination against blacks, they risk getting sued by passed-over whites. If they admit their own past discrimination to justify such a program, they risk suits by blacks. If they do nothing, they stand to lose valuable federal contracts and be sued by blacks anyway. As usual, the Justices gave no hint as to how they plan to resolve the legal dilemma. But on their decision, which is expected this spring, hangs a question that could affect all Americans: Who gets ahead in the nation's workplaces?

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