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TIME magazine cover of William Rehnquist.
In U.S. Steel Workers of America v. Weber, then-Associate Justice Rehnquist issued an iconic and biting dissent. In 1986, Rehnquist was promoted to the postion of chief justice.

Reproduction courtesy of TIME Magazine
U.S. Steel Workers of America v. Weber (1979)

Decided in 1979, United Steelworkers of America v. Weber was the first case dealing with affirmative action policies in employment to reach the Supreme Court. In 1974, in order to address decades of racial discrimination in its hiring practices and a serious under-representation of blacks among the ranks of its skilled workers, Kaiser Aluminum & Chemical Corp. had instituted a new policy regarding the training and placement of skilled laborers. Initiated as part of its labor agreement with the United Steelworkers of America (USWA), the policy established an on-the-job training program through which unskilled workers could obtain promotions. Admission to the program was based on seniority, but at least half of the available slots were to be held for blacks.

After being passed over for the program in favor of several black employees with less seniority than he, Brian Weber, a white Kaiser employee, brought suit, alleging that the company's affirmative action policy violated Title VII of the Civil Rights Act of 1964. Title VII, which forbids employment discrimination based on race, states in part, "It shall be an unlawful employment practice for any employer ... to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training."

A 5-2 majority on the Court upheld Kaiser's affirmative action training policy. Writing for the majority, Justice William Brennan emphasized that the labor agreement creating the policy had been a private and voluntary one, expressly adopted to address the company's past discriminatory practices. Although Title VII did not require private companies to adopt affirmative action policies, it also did not forbid them to do so. "Title VII's prohibition against racial discrimination," Brennan wrote, "does not condemn all private, voluntary, race-conscious affirmative action plans." Although the decision did not define the line between acceptable and discriminatory affirmative action policies, Brennan did note that because Kaiser's program did not block white advancement and was not intended to maintain a permanent racial balance, it was not discriminatory within the meaning and purpose of Article VII.

Justice William Rehnquist, joined by Chief Justice Warren Burger, issued a sharply worded dissent. A literal reading of the plain meaning of Title VII, he argued, clearly prohibited the affirmative action program. "Taken in its normal meaning, and as understood by all Members of Congress who spoke to the issue during the legislative debates," he wrote, "... [Title VII] prohibits a covered employer from considering race when making an employment decision, whether the race be black or white." Rehnquist compared the majority's interpretation of the law to the insidious language and power games played by the government in George Orwell's dystopian novel 1984, and further stated, "Thus, by a tour de force reminiscent ... of escape artists such as Houdini, the Court eludes clear statutory language ... and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions."

Rehnquist conceded that Congress's motivation in passing the Civil Rights Act of 1964 had been, in part, to end the history of employment discrimination against blacks. However, he contended, if Congress wished to make exceptions to the rule that employers could not consider race in any employment decisions, such exceptions should and would have been stated clearly within the statute. Finding no such language, and confirming his reading of the act with a lengthy review of the congressional record leading up to its passage, Rehnquist concluded: "There is perhaps no device more destructive to the notion of equality than the numerus clausus -- the quota. Whether described as 'benign discrimination' or 'affirmative action,' the racial quota is nonetheless a creator of castes, a two-edged sword that must demean one in order to prefer another. In passing Title VII, Congress outlawed all racial discrimination, recognizing that no discrimination based on race is benign, that no action disadvantaging a person because of his color is affirmative."

Although the Court has never adopted Rehnquist's position in Weber, it did move very close to it in City of Richmond v. Corson (1989) and Adarand Constructors, Inc. v. Pena (1995). Today, the issue of affirmative action remains contentious, and one that the Court is likely to deal with again in coming years. In two 2003 cases dealing with admissions policies at the University of Michigan, the Court voided the university's undergraduate affirmative action plan (Gratz v. Bollinger), which used a point system partly based on race, but narrowly upheld a more individualized policy used by Michigan's law school (Grutter v. Bollinger). Writing for the 5-4 majority in the latter case, Justice Sandra Day O'Connor noted that the Court would consider changing social conditions in deciding future affirmative action cases, stating, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [racial diversity on campus] approved today."

Toni Konkoly is a production assistant at Thirteen/WNET.

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