Civil rights advocates seeking to prevent affirmative action programs from being rolled back are shifting their sights to Congress following a series of major setbacks in the Supreme Court.
"It is just not possible for civil rights advocates to do business in federal courts anymore," Russell Galloway, a professor at the Santa Clara University School of Law in California, said Monday.Galloway and others made their comments after the high court ruled 5-4 that white firefighters in Birmingham, Ala., are entitled to bring suit to attack an affirmative action plan approved eight years ago to settle a lawsuit. The white firefighters were not a party to the lawsuit and say they should not be governed by a settlement in which they had no say.
The decision was the latest in a series of high court decisions chipping away at affirmative action programs, which have been used to give hiring and promotion preference to minorities and women.
Civil rights groups contend the programs are necessary to compensate for years of past discrimination, but the high court's conservative majority is showing a new concern over the issue of reverse discrimination.
The court ruled in January that state and local governments may generally not impose racial quotas for hiring on public works projects. And on June 5, the justices made it more difficult for minorities to prove statistically that they are being relegated to less desirable jobs.
Ray Fitzpatrick, an attorney representing the white firemen in Birmingham, said Monday's ruling is a step toward ending "race-based quota promotions" that unfairly discriminate against whites.
"In our view the one-for-one black and white promotions that Birmingham has been following for eight years are not legal under the U.S. Constitution," Fitzpatrick said Tuesday on "CBS This Morning." " . . . They're excessive. The black population at the firefighter entry level is about 10 to 13 percent, yet 50 percent of the promotions are going to blacks."
Civil rights and women's groups, however, say they may ask Congress to reverse the high court rulings.
"I think a legislative remedy is something that is probably going to be pursued," said Judith Winston, a lawyer for the Women's Legal Defense Fund,
"The time may have come to again go to the Congress and attempt to get the Congress to overrule what the court has done in the civil rights area," said Patrick Patterson of the NAACP Legal Defense Fund in Los Angeles.
"I think it is indispensable at this point that the battle be taken to Congress," said Galloway, who specializes in affirmative action law.
Rep. Don Edwards, D-Calif., chairman of the House Judiciary subcommittee on civil rights, said he was saddened by the court's decision and added, "We'll have to take a look at it" with an eye to possible legislation.
"This decision will open old wounds and create unfortunate new levels of racial animosity," Edwards said.