The MacNeil/Lehrer Report; The Brian Weber Case

BRIAN WEBER: I didn`t plan on starting a crusade, I just started to try to obtain better working conditions, a better job for myself. Since that I`ve found out that there`s a lot of -- there`s thousands, I guess, and more and thousands -- of people who are similarly affected, and I`ve gotten letters and phone calls and all and I`ve found out that there are a lot of people affected that are looking for the outcome of this case.

ROBERT MacNEIL: Brian Weber is a thirty-two year old Louisiana laboratory technician. His is another name that will enter the civil rights history books. He claims that helping blacks has hurt him, and the Supreme Court heard his arguments today.

Good evening. Last summer the U.S. Supreme Court tackled the difficult issues of reverse discrimination and affirmative action in the Bakke case, but left some questions unresolved. Today the Court heard arguments in another, related case which could answer some of those questions more clearly. It`s the case of Brian Weber, who claims to be a victim of reverse discrimination in a training program introduced by Kaiser Aluminum in Louisiana. The central issue is whether racial quotas, used to give opportunities to blacks, violate the civil rights of whites and are therefore illegal. Many people regard Weber as having wider consequences than Bakke, possibly touching millions of blue-collar workers employed by firms who have contracts with the federal government. Weber could thus become another landmark in the series of civil rights cases which started with Brown v. Board of Education twenty-five years ago.

So tonight, the arguments in the Weber case, and what will a decision mean? Jim?

JIM LEHRER: Robin, the facts of the Weber case are these: in 1974 the Kaiser Aluminum and Chemical Corporation and the Steelworkers Union set up an affirmative action program at the Kaiser plant in Gramercy, Louisiana. It was done on the grounds that the total work force in the Gramercy area was thirty-nine percent black, yet only fifteen percent of Kaiser`s employees were black, and of the 300 skilled, better paying jobs in the plant only five were held by blacks, none by women. Under the plan two seniority lists were drawn for screening applicants for advanced training, one for whites, the other for blacks and women. Selections would be done on a straight fifty-fifty basis: for each white male selected one would be selected from the minorities list. Brian Weber, a white man, applied and was turned down for the training program. Minority employees with less seniority were chosen. He filed suit claiming he was illegally discriminated against because of race. A lower court, and subsequently an appellate court, agreed with him. And the company and the union appealed to the Supreme Court, which is where we are now. Robin?

MacNEIL: We invited the lawyer for Brian Weber to appear tonight, but he declined. One of the groups supporting his position and filing an amicus brief with the Court is the Anti-Defamation League of B`Nai B`Rith. Larry Lavinsky is chairman of their National Civil Rights Committee. Mr. Lavinsky, why did the Anti-Defamation League want to file a brief supporting Weber?

LARRY LAVINSKY: The Anti-Defamation League has always been opposed to discrimination, whatever the race or sex of the victim. We have been in most of the major civil rights cases involving discrimination; we consider this a very important case of that type.

MacNEIL: Discrimination against Weber even though the motive of Kaiser Aluminum, the employer, may not have been to discriminate but in fact to reverse discrimination.

LAVINSKY: Discrimination with the best of good intentions is still discrimination.

MacNEIL: What do you feel are the central issues in this case?

LAVINSKY: The central issue in this case is whether, without any prior discrimination by Kaiser Aluminum -- and indeed, with two courts having found that there was no discrimination by Kaiser Aluminum Kaiser and the Steelworkers Union can voluntarily agree to a fixed racial quota which segregates opportunities on the basis of race. That is the central issue of this case, whether that is or is not discrimination under the Civil Rights Act of 1964, and we believe that it is.

MacNEIL: So this case is testing the law, it is not testing the Constitution, as Bakke was.

LAVINSKY: That is correct. This is basically a statutory case rather than a constitutional case.

MacNEIL: So it is whether this act by Kaiser at Gramercy violated the Civil Rights Act of 1964 or not, is that it?

LAVINSKY: That`s right. Specifically, Title VII, which says that no individual shall be discriminated against on the basis of his or her race, in employment.

MacNEIL: Now, what are the merits of Mr. Weber`s arguments, which your brief supports?

LAVINSKY: Well, the facts as they`ve been related are very clear and really are not in dispute. You had a special training program that was set up which really was a means of promotion of unskilled workers; you had Mr. Weber, who had a certain amount of seniority, more seniority than some of the blacks who were chosen for this program under this quota system; you had Mr. Weber being turned down simply and purely because of his race and simply and purely because you had an allocation of opportunities into this training program on the basis of race with two segregated seniority lists, whereas for every other purpose in the plant seniority was a single seniority list for blacks, for whites, for women, for men. And we maintain that the use of a segregated list -- that is, the use of a black list and a white list -- under circumstances where it resulted in depriving Mr. Weber and others who had more seniority than some of the minority workers who were accented into the training program, that this constituted a clear violation of Title VII. And I might add that not only is there a general prohibition against discrimination on the basis of race in Title VII, but there is an express provision which prohibits such discrimination in training programs.

MacNEIL: I see. You said courts had found that Kaiser Aluminum was not guilty of past patterns of discrimination. The federal government has under the Civil Rights Act provision for quotas to be used when firms have been found guilty of discrimination, to remedy that discrimination. Do you agree with quotas in that kind of case?

LAVINSKY: First of all, it is not by statute. There have been some cases which -- there have been many cases, as a matter of fact -- where there has been discrimination found, and where there are identifiable victims of that discrimination certainly those people could be put in their rightful places. There are other cases in the lower courts where there has been a finding of past discrimination and where classwide relief has been applied; that is, where blacks who were not necessarily discriminated against have been given an advantage. -But the Supreme Court has not passed upon the legality of a quota, even under those circumstances.

MacNEIL: I see. And in your view, quotas are illegal and wrong, in this case.

LAVINSKY: In our view the quota is an extremely dangerous and intrusive discriminatory measure which can be granted under the most extreme of circumstances, which do not exist in.this case.

MacNEIL: Well, thank you. Jim?

LEHRER: The two major parties on the other side of the case, of course, are Kaiser and the Steelworkers Union. Kaiser declined to appear tonight, but the union is here, in the person of Michael Gottesman, the attorney for the United Steelworkers of America. He argued the union`s position today before the Supreme Court.

First of all, do you agree that the plan that was enacted in Gramercy discriminated against whites?

MICHAEL GOTTESMAN: Not in the sense the Congress used that word when it passed Title VII of the Civil Rights Act in 1964. Congress had in mind when it passed that law ending the kinds of discrimination which had put down blacks and other minorities in this country for centuries. It talked about bigotry, about bias, about prejudice; and it was that evil to which that law was addressed. Now, Congress did have in mind the question whether companies and unions should be allowed to adopt affirmative action programs, and there are, I think, clearly pros and cons to employers and unions doing that. Congress was aware of that. It thought that it was very controversial. And it`s our understanding of the law that Congress made a judgment that this area of affirmative action programs was one that it wasn`t going to tackle in that law. It wasn`t telling employers and unions that they have to adopt them, but neither was it telling them that they were prohibited from doing so. That was a question that Congress was leaving where it had been until 1964; nobody questions that until 1964 an employer and a union could have adopted a program like this. The question is, did Congress take the right away from them in that statute? And we understand the law to be that Congress did not. Of course, Congress would be free to do that at any time if it decided it didn`t like these programs.

LEHRER: Is it your position, then, that the action by having the double seniority list is not discriminatory against whites, Brian Weber and others?

GOTTESMAN: Oh, it has an impact against whites. It may well be that but for this program more whites would have gotten craft jobs and fewer blacks. But it`s not discriminatory in the sense that Congress intended to prohibit in 1964.

LEHRER: What about Mr. Lavinsky`s point that discrimination, even for the best of motives, is still discrimination?

GOTTESMAN: Well, that`s a judgment for Congress to make. Congress could make that judgment; Congress could say, We don`t want affirmative action programs. And if Congress said that, that would be the law of the land. It`s our understanding that that`s not what Congress said in 1964.

LEHRER: All right. Mr. Lavinsky also said that the quota system, any kind of quota system, is the most extreme means in terms of correcting past discriminations. Why did your union and Kaiser choose this particular quota system?

GOTTESMAN: I think it`s fair to say that it`s the union`s judgment, and it`s a judgment that the union has made nationwide and has remained committed to for all the years between, that while it may be an extreme means it`s the only means that works. Kaiser tried prior to 1974, in a number of ways, to get more black craftsmen at that plant. The simple fact was that conditions being what they were in Louisiana there were no qualified black craftsmen. And the only way there ever were going to be qualified black craftsmen is if Kaiser adopted a training program and provided accelerated training to blacks so that they would be ready to take these craft jobs as they came open. And the judgment was made by the union and the company that if we`re ever going to overcome these patterns in which there are lots of black workers in a plant but virtually no black workers in the high-paying skilled jobs, we`re going to have to do it with a training program and accelerated entry into that training program for minorities.

LEHRER: All right; thank you. Robin?

MacNEIL: Mr. Lavinsky, Mr. Gottesman says that this is not discrimination in the sense that Congress intended in the Civil Rights Act of 1964.

LAVINSKY: Yes, I know he made that argument before the Supreme Court today, and the government took issue with some of his points on that subject and pointed out that in one of the landmark cases under Title VII, one of the early cases by the United States Supreme Court, the Court indicated that discriminatory preference against any individual, minority or majority, is precisely what Congress has proscribed. The argument was made to the Court -- it remains to be seen what they do with it -- but certainly his position is a very controversial one, to say the least.

MacNEIL: How do you answer that, Mr. Gottesman?

GOTTESMAN: Well, it`s clear, I think, the Supreme Court has not answered this question until now. This is the case that asks the Supreme Court to decide what Congress meant on this subject in 1964. There is much in the legislative history to indicate that Congress intended to leave affirmative action out of Title VII, to leave it to the private parties to do if they want to do it. There are contrary indications; this was the longest debate in the history of Congress, and sure, there are statements on both sides. But we`ve cited in our brief to the Court and we`ve argued to the Court today that when you read the totality of that history the best understanding of Congress` intention was that this was too controversial an area, it wasn`t the main target of the bill that they were considering that year, and that the judgment they made was, Let`s leave it where it is, let`s leave it with private parties. If they want to try it, let them go ahead. Congress was not saying, We think it`s terrific; they weren`t saying, We think it`s terrible. What they were saying is it`s controversial, we don`t want to legislate about that today. And Congress is free at any time to change that judgment if it wants and come along and say, We don`t like the direction affirmative action is going, we want to put limits on it. But it`s our understanding that to date Congress hasn`t done so.

MacNEIL: Is that how you understand this case, that it is saying in effect: what did Congress mean when it apparently sort of dodged this issue specifically in 1964?

LAVINSKY: Well, that`s what Mr. Gottesman tries to say the case means. What the case really means is when Title VII says that no individual shall be discriminated against on the basis of his or her race, whether that means that a union and an employer cannot voluntarily agree to violate that provision and to take away the ability of individuals to compete. And I want to point out that with the fixed racial quota, that`s exactly what happens. No white person can compete with those on the black list; no black person can compete with those on the white list. There is a total destruction of the ability to compete, on the basis of race, and race is the sole prerequisite for the ability to compete for a given place in the program. It seems to me that is the central issue, and what Mr. Gottesman is arguing is essentially that while there is an express provision under Title VII that says that no employer can be required to have racial preference in order to achieve racial balance, that that may bind the federal government, that may bind the courts, who after all are third parties who can regulate the process; but that employers alleged discriminators are perfectly free now to discriminate against a new class of victims. It seems to me that that is a very, very hard argument to sell.

MacNEIL: Mr. Gottesman, do you believe that if Mr. Weber wins and the position Mr. Lavinsky puts forward carries the day with the Court, that this will kill voluntary efforts at affirmative action in companies like Kaiser, many thousands of companies that have contracts?

GOTTESMAN: I think it`s always tough for a lawyer who`s arguing a case to predict the consequences of what the Supreme Court is going to decide, and I`m really very reluctant to do so. Particularly here be cause there are a lot of different ways the Court could decide this case. The ramifications could be very broad, they could be relatively narrow. And until the Court does decide it, decides which side is right and decides the reasons why that side is right, it`s really very difficult to predict what the implications of that decision would be for affirmative action generally.

MacNEIL: Do you feel, Mr. Lavinsky, that if your side carries the day it will effectively kill voluntary affirmative action by many employers?

LAVINSKY: Very definitely not. This case does not involve any real curb on the ability of employers voluntarily to use affirmative action, and I might say the Anti-Defamation League supports the idea of voluntary use of affirmative action. What it does deal with is whether one particular type of approach to affirmative action may mean a fixed racial quota is legal and permissible when voluntarily adopted. We submit that that is illegal, we submit that there are many other approaches to affirmative action which can be used, and which can be used effectively.

MacNEIL: Well, we`ll come back to those in a moment. Jim?

LEHRER: Speculating on how the Supreme Court may rule in any given case is a tricky business, but that, among other things, is what Lyle Denniston does for a living as a Supreme Court reporter for the Washington Star. Lyle, is there any kind of consensus-type speculation on how the Court might go on this?

LYLE DENNISTON: I think there is at this stage, Jim, but it`s tentative, perhaps more tentative than press speculation usually is. It`s tentative in this sense: the judgment is that if the Court is constituted by seven members, if only seven justices vote in this case, that probably Kaiser and the Steelworkers will win; in other words, quotas will be upheld.

LEHRER: The reason there are only seven, of course, is..

DENNISTON: Well, there are two disqualification`s or potential disqualifications. Justice Stevens is out of the case, he`s never said why. It`s been suggested that maybe he has stayed out of other cases involving Kaiser; we don`t know. He`s not out of it because he`s opposed to the issue, or anything like that. But he`s out of this case.

LEHRER: And he doesn`t have to give a reason?

DENNISTON: He doesn`t have to give a reason. A judge is not required to participate; he has an obligation to do so, but he also has an ethical obligation to stay out if he thinks that somehow his views are or may be compromised or thought compromised. Justice Powell, who had surgery for the removal of a tumor from his colon, is still off the Court and he missed the argument today; but he has not said he is out of the case. Now, remember that Justice Powell was the swing vote in the Bakke case, which was four- one-four, and he was the one; and if Powell is in this case, then the consensus judgment, I think, begins to weaken because then you have an eight-man Court and the Court conceivably split four-four.

LEHRER: And what happens if the Court should go four-four?

DENNISTON: Well, if it splits four-four, that means that Brian Weber wins, because the effect is that the decision in his favor in the lower court is upheld, and the Court never writes an opinion when it does that, it just simply says the judgment is upheld by an equally divided Court. What that means in practice is that quotas of this kind would not be allowed in Dixie, where the Fifth Circuit sits and where its opinion would be binding. It would in fact mean that throughout the South employers and unions could not undertake such voluntary efforts to upgrade the opportunities for minorities and women.

LEHRER: But it wouldn`t be a binding decision in the other circuits around the country.

DENNISTON: No, and what would happen would be that everybody would begin awaiting the arrival at the Supreme Court of the next post-Weber decision by a lower court involving another white worker who claimed reverse discrimination.

LEHRER: Lyle, were there any telltale signs, or any clues, I should say, as to how the Court might go on this from the questions and the reactions from the justices today to the arguments from Mr. Gottesman and others?

DENNISTON: There were a few. Probably two of the most important clues, however, were clues that raised additional questions. One was that Justice Blackmun, who`s counted in the consensus speculation as one of the pro-quota justices, at the end of the argument asked Mr. Fontham, Weber`s lawyer, how he thought Senator Humphrey`s comments cut one way or the other. Senator Humphrey, of course, was one of the leading proponents of the bill that is at issue in this case, and it appeared that Mr. Blackmun was trying to invoke somehow the ghost of Hubert Humphrey in order to help him decide. And everyone who watches the Court knows that Mr. Blackmun is one of the justices who has the most difficult time making up his mind on any difficult issue. So he s likely to look for help anywhere he can get it. And that indicates that maybe his vote is not so solidly in favor of quota. The other was that Justice Stewart, who was one of the anti-quota four on the Bakke case, seemed to have his mind somewhat looser than it was in that case, that he might in fact move with the four pro- quota justices, or that he might move the other way. When it was suggested to him by tar. Fontham, Weber`s lawyer, that if what had been done to Weber had been done to blacks that would be promptly struck down in any court in the country, including the Supreme Court,

Mr. Justice Stewart immediately responded, Well, you know more about that than I do -- implying that he isn`t so sure where he`s going. And if he should move over, then, and the four on Bakke would stay together, you would have a clear five-justice majority. And if one knows anything about the institutional character of the Court, one assumes that they would like to decide this with, let`s call it, an institutional majority, that is, five out of the Court, so there`s no question about it.

LEHRER: When will we likely have a decision on this?

DENNISTON: I think it`ll probably come near the end of the term in June, probably in late June. The Court looks like it`s keeping up with its work this year and they could get out, but they will not really tack le this case, I don`t think, in the private discussions at the Court until probably sometime in May after their hearings are over. And I would assume that it would be one of the last they would decide, because it looks like one of the hardest.

LEHRER: ?,then will we know about whether or not Justice Powell is going to participate?

DENNISTON: It`s possible that we will not know until the day the case is decided. He does not have to announce that; those of us in the press who are interested will keep badgering him to say whether he is in or out of the case. And Per. Powell is a very cautious and careful person about dealing with the press, and he is not likely to intimate where he is going to be on this matter if it looks like that could somehow suggest that there is some maneuvering going in the Court, and surely there will be to get him in or keep him out of the case.

LEHRER: Finally, Lyle, I am not cautious in dealing with the press, so let me ask you: in your opinion, what do you think the Court`s going to do?

DENNISTON: Well, I would bet that they would probably uphold the quota system because that isn`t a terribly daring thing to do at this stage, because if Congress thinks it goes too far Congress can always change it.

This will be a judgment on what the law means and what Congress intended, not on the Constitution. You can undo it in a fortnight, if Congress is willing.

LEHRER: All right, thank you. Robin?

MacNEIL: Do you agree there could be a four-four split as one of the possibilities?

LAVINSKY: Yes, of course.

MacNEIL: Do you agree with that, Mr. Gottesman? Do you see that as a real possibility?

GOTTESMAN: Well, it`s theoretically possible. I wouldn`t want to begin to predict how the Court is actually going to vote in the case. The last person who should try to do that is the lawyer who argued the case that day.

MacNEIL: All right. Let`s come back to the question of what the consequences would be in the workplace if the Weber position carries the day, as Mr. Denniston stuck his neck out a moment ago to predict it might. Will it kill voluntary affirmative action programs, do you believe, Mr. Gottesman?

GOTTESMAN: Well, again, as I said earlier, I think much depends on how the Court decides the case, how broad its ruling is, the particular grounds that it gives. There are many ways the Court could decide this case, and some of them would have greater impacts than others; and it just is impossible to speculate on what the impact of that decision is going to be until the decision is rendered and people have an opportunity to read it. We hope, of course, the Court will uphold this program, and I think it`s fair to say that if the Court uphold the program there will be elbow room for parties to negotiate programs of this type.

MacNEIL: You mentioned a moment ago that there were plenty of other ways in which an employer could practice affirmative action, eliminating quotas. What ways?

LAVINSKY: Well, let`s try to be specific with this particular case...

MacNEIL: What could Kaiser have done in this case?

LAVINSKY: Given the fact that they had attempted to recruit minority skilled tradesmen without much success, the training program that they initiated did not necessarily have to be based exclusively on seniority where minority workers were predominantly younger workers with less seniority. They could have used other factors, job-related factors, abilities and skills and physical abilities and so forth that would permit selection among individuals and not treat everybody on the basis of seniority. That might have opened up opportunities for minority applicants.

Another possibility might have been to go into the high schools in the surrounding areas, which had a large minority population, taking graduates who had had some carpentry or electronics work and so forth; hiring them and putting them right into a training program, thereby increasing minority representation. Another possibility might have been, instead of simply putting a few people into a training program only when a job opened up -- that is, if there was an electrician needed an electrician would be trained, and so forth -- you could have put larger numbers of people into training programs and then selected the best.

MacNEIL: Those are some examples. Mr. Gottesman, you said earlier that the quota system that Kaiser adopted was the only way to get black craftsmen. What do you say to the examples Mr. Lavinsky`s given of alternative ways?

GOTTESMAN: Well, I suppose some of those alternatives might work, but I think they`d be regarded by both the white and the black workers at the Gramercy plant as awful. He says go out and find people in the schools; but this is a program to train the people who are already working in the plant. And I think it`s important to note that this is a program that provides training to both whites and blacks which neither whites nor blacks could get before. Until this program was adopted Brian Weber and the other white employees in that plant had no hope of ever becoming craftsmen, because they didn`t have the skills either. This training program -- and we only got the training program because of the commitment to get more blacks into the crafts -- provides half of its vacancies to the whites in that plant and gives them a chance for training they`d have never had otherwise. And if you gave these choices to Brian Weber, he would opt for the choice we took as against any of the choices that Mr. Lavinsky has spelled out to you today.

MacNEIL: Okay. Well, we`ll have to see which of those arguments succeeds, sometime in May or June. Thank you, Lyle Denniston, for joining us; thank you, Mr. Gottesman. Good night, Jim.

LEHRER: Good night, Robin.

MacNEIL: Thank you, Mr. Lavinsky. That`s all for tonight. We`ll be back tomorrow night from Hershey, Pennsylvania to examine what went wrong today at the Three Mile Island nuclear power plant, where faulty equipment caused an escape of radioactivity. I`m Robert MacNeil. Good night.