Funding for Frontline is provided by this station and other public television stations nationwide and by the Corporation for Public Broadcasting.
We want what I think Martin Luther King asked for. We want a colorblind society.
Tonight, should the last hired always be the first fired?
Affirmative action makes some white people angry, okay, and it makes some black people feel like, well, they're giving me the job just because I'm a token.
To a white person, I would say that you're starting to feel the things that black people or minorities have felt for a long time.
The affirmative action program was becoming a quota system.
Tonight on Frontline, assault on affirmative action.
From the network of public television stations, a presentation of KCTS Seattle, WNET New York, WPBT Miami, WTVS Detroit and WGBH Boston.
This is Frontline with Judy Woodruff.
Good evening.
The U.S. Supreme Court is about to issue two major rulings on one of this country's most controversial social issues, affirmative action.
The court is being asked to decide whether race should continue to be a factor in hiring and promotion.
The decisions come at a time when this nation is more than ever divided over the question of whether it is right to make up for past discrimination this way.
Tonight, as we await the court's decision, Frontline takes a look at both sides of this national debate and explores why the Reagan administration seems to be engaged in an assault on affirmative action.
The program is produced by Scott Craig and Kathy Jean Greco and written by George Curry.
Our story begins in Memphis.
Memphis sits on the banks of the Mississippi River.
It has a population of 650,000 people, half black, half white.
It's known as the home of W.C. Handy, the father of the blues.
There is also Graceland, where Elvis, the king of rock and roll, lived.
It is a dream deeply rooted in the American dream. I have a dream.
And there is the Lorraine Motel, where the dreamer, but not the dream, died.
The sons of former slaves and the sons of former slave owners will be able to live together as brothers. I have a dream this afternoon that one day...
Memphis is also where a major U.S. Supreme Court ruling began.
It is known in the legal annals as Firefighters' Local Union Number 1784 versus Stots.
Engine house number 14 is responding to an alarm.
The fire is in one of the city's poorest neighborhoods.
Today there are 12 whites and 4 blacks on the shift.
But blacks have not always been employed by the fire department.
The first were hired in 1955, one year after the Supreme Court outlawed separate but equal schools.
Since the discovery of Memphis on the river, there had never been another black.
Carl Stots was one of those 12 blacks hired in 1955. Another was Floyd Newsome.
The class was divided, black and white. We all went on at the same time, but we were split up.
And when I say split up, I mean split up. They didn't even allow us to play ball together at lunchtime.
The black recruits were treated as though they were a separate fire department, separate and unequal.
Well, it was total segregation. We were all housed at the number 8 engine house at Crump in Mississippi.
We had white officers, a white lieutenant and a white captain.
And they lived in separate quarters within the quarters.
And at certain times they would throw their shoes in the corner and expect for them to be shined.
They would come and bring their turnout clothes, their firefighting clothes, and throw them down in the corner and say, you know, watch those.
They say humiliation was only one of their problems. Another was the complete lack of upward mobility.
Dreams of climbing the ladder of success were just that, dreams.
I would like to have driven hook and ladder. I never had a chance to qualify or do it on the back end.
You know, I would have liked to have been a paramedic, would have liked to have been a squad man.
But we never got a chance to work out of those units.
It wasn't all that long ago that blacks might not have been allowed to fight a fire like this one at all.
Tonight, the victim is an elderly man.
Carl Stotz remembers one incident where the victims were guests of a downtown Holiday Inn.
When we got on the scene, our officer ordered us not to go in to stay on the pump.
And the building was really burning.
And the reason behind that is because they had white ladies in there with, you know,
it was a time of night where they was, you know, in their night garments.
And they just didn't want us to see them like that.
And so the class of 1955 limped along, segregated from the others, gaining little experience.
For a long time, no other blacks were hired. Fire Officer Ulysses Jones.
As a matter of fact, between 1950 and 1976, the city had only had 94 blacks.
And they had 1,683 white firemen.
They didn't intend for blacks to be owned.
In fact, they wished we had just gone away.
And that way they could say, well, I told you so, you know, blacks cannot be firefighters, cannot be firemen.
Looking back on it, even white firemen now acknowledge the system was unfair.
But at the time, it was not an issue. It was just the way things were.
Really, I didn't think anything about it then.
Because back then, a new private wasn't supposed to think.
You were just supposed to do what you were told.
I didn't give it a second thought because most of the whites, because I grew up in a white world.
You know, I remember two water fountains and a colored door and a white door, you know.
I'm not saying that was wrong. It's just facts of life, you know.
Blacks were not part of the good old boy group.
They were not hunting buddies.
They didn't go out and paint the chief house.
They didn't lay driveways for the chief.
They didn't run with the chief on their days off.
So, you know, they were not included.
In the black community, half of Memphis has never been adequately reflected in the fire department.
If it was hard to get hired because you were black, it was even harder to get promoted.
In one particular year, 1977, you had something like 37 lieutenants that were promoted.
Out of those 37 lieutenants, two of them were black.
I guess, for whatever reason, I felt like I would be able to advance if I did well, if I did my job.
And if I took the test from past, I felt like I'd be able to advance.
However, after 12 years, you know, that feeling soon dwindled away.
For years, you know, I was held back because of race.
And after 10 years, I decided that was long enough.
So I started looking towards filing a suit.
In 1977, Carl Stotz did just that.
He filed a discrimination suit against the city of Memphis.
It was a courageous move for a man from the other side of the tracks.
His daughter, who was in law school, encouraged him to go to court.
A group of black firefighters decided to pay for it out of their own pockets.
And what happened over the next three years dramatically changed the makeup of Engine House 14 and the rest of the Memphis Fire Department.
The city saw a long and costly fight ahead, one it could easily lose.
So finally, in 1980, Memphis agreed to an out-of-court settlement called a consent decree.
That agreement called for establishing certain goals.
Until the department reflected the racial makeup of the city,
50 percent of all new hirings and 20 percent of all new promotions had to be black.
Carl Stotz had won a victory.
And like other blacks in the department, he benefited from the consent decree.
Is the Fire Marshal's office involved in this too?
Yes, they are.
He moved all the way up to deputy chief in charge of the airport.
But there was a major flaw in that 1980 decree.
It made no provisions for handling layoffs.
Stotz's lawyer, Richard Fields.
The very next year, in 1981, throughout the country, particularly in Memphis, there was a financial crunch
because of the cutback of the federal budget.
And the city made plans to decrease the number of firefighters.
They were going to lay off 11 drivers.
Out of those 11 drivers, nine of those were black.
They were going to lay off 17, demote 17 lieutenants out of those 17, 15 of them were black.
They were going to demote three captains.
Excuse me.
Out of those three captains, two of them were black.
And that was just phase one.
It had taken years for blacks to get on the Memphis Fire Department
and a lawsuit for them to become part of the promotional process.
I got it by myself.
Then when the budget crunch hit, blacks were the first laid off.
Blacks saw their recently won victory threatened.
Two rights seemed to be in conflict.
According to the union contract, layoffs had to be based on seniority.
Since blacks were the last hired, they had to be the first fired.
White firemen, many of whom were attracted to the fire department because of the job security,
did not want that seniority system threatened.
And that's when the union got involved.
Their lawyer, Alan Blair.
The union wanted to make sure that when people were laid off in the fire department,
that they would be laid off on the basis of seniority,
and not on the basis of the federal court's affirmative action order,
which really didn't apply to layoffs.
Union president, Curran Huddleston.
It was an issue of protecting principle and contract.
Now, some people might have perceived it as a racial issue, but to us it wasn't.
If you did not promote by seniority, why demote by seniority?
Seniority was never an issue in promotion until the consent decree
or until affirmative action was in place.
They have never promoted by seniority on the Memphis fire department
from the conception of the Memphis fire department.
Now, I find it awful interesting that at the time we ratified that contract
or we negotiated it, brought it back to the city
or brought it back to our members for ratification vote,
there was not a vote against it.
Blacks and whites, it all sounded great.
You know, last hired, first fired.
But then the blacks got affected.
Now we've become, we've gotten away from principle
and we're dealing in opportunistic, and that's the way I perceive it.
Carl Stotz didn't perceive it that way.
He'd taken the legal route before and he decided it was time to go back to court again.
In Memphis, Stotz won the first round.
A federal judge ruled that the city could not use a seniority system
that would lay off too many blacks.
The union appealed.
Stotz won again.
Then the case went to the highest court in the nation.
Because of the significance of the seniority system
and because of the significance of this case to all seniority systems across the country,
the union felt that it was a case that had to be fought all the way to the Supreme Court.
I didn't knock on the door at the Supreme Court.
The local union carried me there.
And the reason they carried me there is because
they didn't want their little union membership disturbed.
They didn't want layoffs.
They wanted to do the same old trick to last high, first fire.
And I can't allow any group, I don't care if it's male, female, black, white,
to circumvent our contract.
That's what we negotiated.
It's in writing and that's all I care.
I don't care if you're black, white, I don't care.
On June 12, 1984, the Supreme Court made its decision.
Stats lost.
The court agreed with the union.
Layoffs should be made on the basis of seniority.
Last hired, first fired would stand.
But so would Stats' earlier victory.
In Memphis, the 1980 consent decree is still in place.
Half of all new recruits in the fire department still must be black.
One-fifth of all the promotions still must go to blacks.
But it is clear from the court's ruling that seniority takes precedence over any affirmative action plan.
Stats had won one and lost one.
For Memphis, it seemed the case was closed.
But the Stats' decision touched off fires in other places.
The biggest started in the most unlikely spot, Washington, D.C., at the Justice Department.
Assistant Attorney General William Bradford Reynolds.
What we did is we said that as we understood the court's decision,
if you have a consent decree in place or a court order in place that does rely on quotas,
race-conscious decision-making, whether it's hiring or promotion or layoffs,
if you have that in place, after the Stats' decision, the court has told us that you have to move in a race-neutral way.
In other words, he's saying we've gone too far, that in fact the phrase affirmative action has come to mean reverse discrimination.
If you're doing it, it's discriminatory.
And if it's discriminatory, our anti-discrimination civil rights laws say stop doing it,
and we feel that that's precisely what the Supreme Court reaffirmed in its Stats' decision.
And that very statement is a surprise.
Even the union lawyer who beat Stats in the Supreme Court was taken aback by that.
With all due respect to Mr. Reynolds, I feel that his interpretation of the case is a little too broad.
I think that he has taken the ruling and indicated that it means a little more than it means.
And if he's surprised by Reynolds' interpretation, civil rights activists saw their worst fears coming true.
They saw the federal government reversing nearly half a century of policies that helped people like Carl Stats,
beginning with Franklin D. Roosevelt in 1941.
Every president, Democrat and Republican, took an active part in using his power to combat discrimination.
That push for equality accelerated in 1961 with John F. Kennedy in the White House and his brother Robert serving as attorney general.
When John Kennedy was assassinated, Lyndon B. Johnson, a Southerner, picked up where Kennedy left off,
including the Civil Rights Act of 1964 and the 1965 Voting Rights Act.
Even Republicans Richard Nixon and Gerald Ford did not alter the course.
Neither did Jimmy Carter, the former governor of Georgia.
But civil rights took a different turn under Ronald Reagan.
Rather than being viewed as a friend of civil rights, the administration was considered openly hostile.
The president was asked about that in a news conference last February.
Mr. President, in the 60s you opposed all the civil rights legislation,
but more recently you said that you were a part of the Martin Luther King Revolution.
If that is the case, why is your administration so bent on wiping out the flexible hiring goals for blacks, minorities and women?
And I'd like to follow up.
We're not wanting to do that, but we have seen in administering these programs,
we've seen that the Affirmative Action Program was becoming a quota system.
Now, I've lived long enough to have seen quotas when they were employed long before there was a civil rights movement,
and they were employed in my youth to definitely discriminate and use the quota as a means of discrimination.
And therefore we feel that, yes, we want Affirmative Action to continue.
We want what I think Martin Luther King asked for.
We want a colorblind society.
What Dr. Martin Luther King Jr. said at that time, and everybody has agreed with,
he would scream when his children would be measured by the content of their character, not the color of their skin.
I think we have a constitution and a body of civil rights laws that say that we have to stop discriminating.
We have to stop looking at people based on skin color.
We have a colorblind set of laws, and we need to get to that point in society.
Our view is that to get to that point, we can't play around with discrimination to cure discrimination.
Views like those have stirred up critics of the administration.
Something irritates me and amuses me at the same time more than to have the Brad Runnels of the world
and the Ed Mises of the world and President Reagan even talking about being in lockstep with Martin Luther King
because he believed we had a colorblind society.
A member of the U.S. Commission on Civil Rights, Mary Frances Berry.
As Justice Blackmun said on the Supreme Court, you have to sometimes use race to get beyond race.
You sometimes have to use gender to get beyond what happened.
All of us would wish that the nation did not have the sorry history that it does have
and that we wouldn't have to keep dragging this stinking burden of race and gender discrimination around with us
that comes from what happened, but it happened, and we have to acknowledge that it happened,
and we have to do what is necessary to get over.
The heart of the argument is that the Justice Department says there are ample opportunities for minorities and women.
Goals and quotas are no longer necessary.
I think that this notion that if we didn't play by the numbers,
that somehow we would not get into the workforce anybody but white males is, to me, highly offensive
because it assumes that those people out there who are minorities and women and want to compete
couldn't compete if they were given the chance.
What we found, and we found it over and over again, is if you allow everybody to compete,
you're not going to have a whole lot of problem with your numbers.
Armed with his interpretation of the Stats decision,
William Bradford Reynolds wrote to 51 cities, counties, and states
demanding that they weaken their affirmative action consent decrees.
Letters went out to places like San Diego, telling them that they could no longer use goals and timetables in hiring.
San Diego, with a Republican mayor, immediately agreed to the change.
Many were not surprised.
Letters went out to the Chicago police and fire departments as well,
and no one was surprised that Harold Washington, the black Democratic mayor of Chicago, opposed them.
But there were some surprises, like Indianapolis,
which has a Republican mayor and a Republican-dominated city council.
When it received the letter, it refused to go along with the Justice Department.
Indianapolis is in the conservative heartland of middle America.
It used to be referred to as Indian no-place.
The image was that there was little else to do here, except wait for next year's 500.
But all of that has changed. Indianapolis is a big league city.
It has a professional basketball team, the Pacers.
It persuaded the Colts to run away from Baltimore.
And downtown is booming.
The Chicago Tribune called it a bullet train of growth and progress.
Newsweek was also impressed, tagging it Cinderella of the Rust Belt.
The Public Affairs Department of WTLC now presents Amos Brown and Morning with the Mayor.
This is the first Morning with the Mayor of 1986.
Many credit this man, Mayor William Hudnut, for much of the new growth.
Good morning, Mr. Mayor. Good morning. How are you?
Well, good, thanks. I'm calling about the streetlights.
Before becoming mayor in 1975, Hudnut was a Presbyterian minister.
He also served one term in Congress.
A conservative group gave him a 92% approval rating.
When he ran for mayor, he made all the usual promises that blacks would be part of his administration.
But nobody expected him to go this far.
Speaking of affirmative action, you've sent another letter to Washington.
How many does this make?
I wrote to the President of the United States.
He's obviously got other things on his mind, and I'm not sure he'll ever see the letter.
As mayor, Hudnut has managed to walk a political tightrope.
So I just wrote to the President the day after Martin Luther King's holiday last week.
Endorsing Ronald Reagan for re-election while keeping the lines of communication open with blacks
will make up about one-fifth of the city's population.
It seems to me as though it's incumbent upon me again to ask him, which I did in the letter,
not to sign any executive order that would modify or terminate the executive order on affirmative action
that goes all the way back to President Johnson's day.
Hudnut has been elected to three consecutive terms,
and the city has had an affirmative action program in place for the past eight years.
Seven, four, five, six, seven.
When Hudnut was elected, about 10 percent of the police department was black.
Now it's 14 percent.
There is a similar pattern with women.
It's grown from seven to 11 percent.
Slow but steady improvement.
By most standards, affirmative action was working smoothly.
The department was beginning to reflect the makeup of the community.
So when the Justice Department insisted Indianapolis weaken its affirmative action program,
Mayor Hudnut refused.
The Justice Department then sued the city to force it to change its program.
But Hudnut, backed by his city council, said he was willing to fight it out in court.
I was depressed to start with because here we are,
Indianapolis is the largest Republican city in the country.
Nobody ever flags this for me.
Nobody ever told our senators they were going to sue Indianapolis.
Nobody ever called up and said this is coming.
All of a sudden, boom, right out of thin air, there it is.
And it's a cause with them.
Bill Brock tells me they really want to win this.
They want to have a victory.
They want to nail the coonskin cap of affirmative action to the wall and leave it there for all time.
Mayor Hudnut called a news conference to announce his plans.
Regardless of what the Justice Department's stance is,
unless they tell us we should be doing more and force us into higher goals and guidelines,
I want to stick it to 25 percent.
I feel that that's a moral commitment that I made to the minority community when I was elected mayor.
And it's been that way ever since January of 76, my first month in office.
And I'm not going to back down now.
Hudnut then went to Washington and asked that the Justice Department reconsider its position.
He met personally with William Bradford Reynolds.
Well, he did come in and we did talk,
and we have a difference of view as to what the Stott's decision meant and how it should be interpreted.
He quoted statistics at me about how 75 percent of the blacks,
or whatever it was that were polled in a recent poll, were against quotas.
I said, well, we don't have quotas.
He said, well, yes, you do.
I said, we don't. We have goals.
We're trying to get more minorities and women into the police department, the fire department.
He said, you're guilty of preferential hiring, unconstitutional practices.
And there was just no give and take there, no middle ground.
My view is that that policy judgment that Congress made was thou shalt not discriminate
on account of race or sex or religion or national origin.
And that means that you don't discriminate a little bit or a lot a bit.
You don't discriminate in forward gear or in reverse.
You don't discriminate.
I told him why I thought that affirmative action was working pretty well here.
I told him I thought their position was wrong, legally, morally, and politically.
I asked them to withdraw their motion against us to refine our consent decree or modify it,
whatever the technical language is.
But I didn't feel as though I got anywhere.
The dispute between Reynolds and Hudnut spilled over to the Indianapolis Fraternal Order of Police.
Until now, the FOP had remained neutral on the issue of affirmative action.
Normally, the organization intervenes in disputes between officers and the department.
Now it had to deal with a dispute within its own ranks.
Unexpectedly, the executive board of the Fraternal Order of Police voted to support the Justice Department.
As a result of their lawsuit, we had the FOP split almost between blacks and whites.
We had the top black in the police department saying he wanted to resign from the FOP.
Assistant Police Chief Joseph Shelton.
When I heard that the Fraternal Order of Police was enjoining the Justice Department
in the suit against affirmative action,
I felt personally that I did not want to be a part of any organization that did not believe as I believe.
We had people all of a sudden out there on the street patrolling together in cars with tension between them
because one was black and one was white that we didn't have before.
Daryl Pierce is just beginning his career.
Jim Wirz is an old pro.
Yet both have the same rank, narcotics detective.
Pierce might not be here without affirmative action, but Wirz believes it hurt his career.
My father was a policeman before me.
And even when you come on, you always want to, you know, you have to set your goals.
My goal, I guess everybody that went through recruit school is to be the chief someday.
And getting into the twilight of it now.
You want me to get those guys from Chicago?
Yep.
Jim Wirz complains he has been passed over several times because he's the wrong color.
We're just committed to this.
And, you know, just like I said, my feelings are against it.
But, you know, this is the way we go.
I want a purple one.
A purple one?
Yes.
Looks like a great one.
Wirz is eligible for retirement in two years, but he says he can't afford to.
He has a wife and a seven-year-old daughter to support, so he's caught and a little bitter.
If a person's not qualified for the job, he shouldn't have it.
I mean, that's the way I've always felt and I guess the way I always will feel.
805 E 34th Street, Department 22.
Detective Pierce sees it another way.
I can understand they feel like they're being passed over.
They're being discriminated against now.
Turn around and face me.
But really, when you look at it, they're only taking a percentage of the minorities.
The majority is still going to be a wasp.
Catch.
Even as a child, Darryl Pierce never dreamed of becoming a police officer.
And that didn't change after he reached adulthood.
Not until he heard a radio commercial encouraging blacks to apply.
He did and was accepted.
Good throw.
Pierce had never fired a weapon before joining the force.
Yet three years ago, he received the department's highest honor, the Medal of Bravery.
The suspect was black.
The officers with Pierce were white.
The next thing I know, the sergeant was backing up with his hands up and saying the guy had a gun.
And by the time he cleared, he was backing up in the way of the other two officers.
So they couldn't do anything.
And I had the wall between me and the other guy, but I could still see him.
And sure enough, he had a 9-millimeter automatic drawn.
And he raised his toy gun to the sergeant and I told him to drop the gun.
And at that point, I pulled the trigger and killed him.
When you're out there doing a job, to me, it's like a brotherhood.
Most people, I don't think, stop and think, well, am I going to pull the trigger to save this guy's life because he's black or whether he's white?
I ran out of the house and didn't bring him with me.
All right.
Thank you, gentlemen.
Don't come out without your driver's license no more, brother.
Oh, yes.
Affirmative action makes some white people angry.
OK.
And it makes some black people feel like, well, they're giving me the job just because I'm a token.
OK.
And I'm black and they have to hire me because they have a quota.
As a white person, I would say that you're starting to feel the things that black people or minorities have felt for a long time.
When the Fraternal Order of Police aligned itself with the Justice Department, patrol officer Roger Bowser was in full agreement.
Black people, they say that, you know, they've been discriminated against for 200 years or whatever.
Well, my parents never owned slaves and their parents never owned slaves and their parents never owned slaves.
They came from Europe, and I don't feel that I should be punished, you know, because of something that happened 200 years ago or whatever.
Now, I'm not saying that females or blacks don't have any right to be on this department, not by any stretch of the imagination.
But I don't feel that we should have had to lower the standards of the department in order to hire more of those type people.
I'm talking about the person that's going to have to come and back me up someday, maybe. And are they going to?
I guess what it comes down to is there are going to be less qualified police officers out here trying to enforce a law or catch a burglar or whatever the case may be.
And it could lower the results that the department gets.
Anything else you guys need, huh?
I'm not saying just blacks. I'm saying anybody, whether, you know, a female that's five foot one and 98 pounds.
And I'm fighting a six foot two, 200 pound gorilla, and she's going to come and back me up. What's she going to do?
Officer Stacey Crowe feels some whites are overreacting. She did not side with the Fraternal Order of Police.
I'm sure that there are some officers who feel that they've been passed over.
And that's a pity, but I think that it's about time that the score was evened.
I think that for quite some time some black officers deserved to be promoted and possibly they weren't.
So I think it may, hopefully in the end, it's going to all balance out to where everybody feels that they haven't been cheated.
A decade ago, Officer Crowe might not have been hired, even though she is a college graduate with a major in criminal justice.
A lot of people think all we do is arrest people, and a lot of times that is the only alternative we have.
But a lot of times we do try to channel people into other avenues when they need help or they need assistance.
We do try to find ways to get them to the right people they need to talk to.
You want to give me some idea what's going on?
OK. This is what happened, OK?
Case in point, a domestic quarrel.
I gave her the money, and she left with these friends, OK? She never got her hair done, OK?
She never called or nothing until the day. Then this morning she was gone for three days, OK?
But I said, that ain't right for Rhonda doing me like that, OK?
And she says, well, you know, I'm not going personal charges against Rhonda right now,
but if she ain't back in two or three days, I'm going to, OK?
So I said, well, if she ain't back in it, she ain't calling.
Fuck you bitches, my kids.
So you look at her, she's taking off her hair with the baby.
It is 12 degrees, and the temperature is dropping.
The woman isn't wearing shoes.
At times, a female police officer can relate with a woman victim.
Say, for example, maybe a rape victim or a woman whose child has been kidnapped or something like that.
She can't find her shoes, you know.
Now, didn't you call somebody to help you?
Just maybe a female officer's presence there might help her, might ease her mind a little bit.
OK, now I can call a victim assistance car and get them to come over here and take you over to your mother's.
Is that agreeable?
I know you can't walk. I know you're angry.
Don't let anger overrule your common sense. You're a mother of two children.
Now, let's go back in the house, and I'll make them stop saying stuff to you, and you wait here on the victim assistance car, and they can come over to your mother.
Instead of jail, it ends simply with a call to a social worker and help.
Officer Stacey Crowe says that without affirmative action, she may never have gotten the chance to prove her ability.
I would be willing to admit, yes, it was a lot easier, OK, for me to go into the department and fill out the application and go through all the necessary steps, OK,
without having my application immediately turned away because I was a female or because I was black.
Yes, it was easier for me to go in, but I cannot rest on the fact that only because of those assets that I was hired.
I wish we had a circle.
I wish we had a circle here, which would be a better graphic representation of our policies than a vertical list.
And we take that circle and we put 50 names in it, and they're all equally well qualified.
And the question is, which ones of those are we going to select if we only can take 10?
And then we're not working off a list so people think they were passed over.
The resentment comes when somebody thinks he or she has been passed over for somebody who's less well qualified.
And we don't think that's the case.
People say we're guilty of reverse discrimination.
It is conceivable that some people could interpret it that way.
But, you know, I get a little upset when we have a promotion list that's put out, for example.
Nine white males are promoted and a black male is promoted, or maybe it's eight white males and a female and a black male.
And then they tell us that we're guilty of reverse discrimination when the whites have gotten 80 percent of the job, the white males.
After weeks of turmoil, the Fraternal Order of Police decided to reconsider its stand, partially because of people like Lieutenant Robert Allen.
All kinds of rumors were floating around, and it got chaotic.
So some of the veteran officers, myself and some other lieutenants and sergeants and patrol officers,
we got together and we said, hey, let's talk about this thing and see what we can do, you know, because everybody's going off in different directions.
Both black and white officers insisted that the issue be placed before the full membership of the FOP.
When it was, they voted to back off.
Once again, the Fraternal Order of Police was neutral.
That pleased Lieutenant Allen because this vote at least held the line.
He remembers the way it used to be when there were few black police officers and even fewer promotions, when promotion tests were rigged and payoffs were rampant.
Well, in those days, there was just about no chance of being promoted if you were black due to the fact there was no policy set to ensure promotions for everybody,
you know, to ensure that they get an opportunity regardless, as long as they had the ability.
Officer Willie Larkins also remembers those days.
If a black wanted to get promoted, he had to wait till a vacancy occurred or another black died or retired to get the job, and they weren't hiring women at all.
Besides race and sex, politics also determined who would get promoted.
Director of Public Safety, Richard Blankenbaker.
There was a time in this city that if you had five chiefs and the Democrats were in, that three of them had to be Democrat and two of them would be Republicans.
If the Republicans were in, vice versa. It didn't make any difference whether they were qualified or not, you know, it was who they knew.
They had guys down there, captains and so forth, could barely read and write, you know, illiterate guys,
but they were good Democrats and Republicans, whoever had been in office at the time that they got promoted.
And I think $50, pay $50, precinct commitment and so forth.
And it was a standing joke at times when promotions come out.
You'd see guys in the credit union line drawing out money.
I had no kid. You'd see that.
And a lot of them the next few days, buddy, you'd see stripes on their arms or bars on their shoulders, you know.
Now, largely because of affirmative action, Allen says promotions are fair and the department is more diverse.
In 1961, when I came on to the police department, there were no women in the street.
There were no uniformed women running patrol cars, doing the work that every day a police officer does.
There were none, and they did not hire them for that.
There were women that were on the police department, but they were in clerical positions, secretaries, maybe in the juvenile branch,
and in those capacities, but there were no women working on the street.
Just a reminder, 6400 Westfield Boulevard, the American Legion lot.
We've got a couple of off-duty officers in plain clothes that will be in the warehouse.
But when Indianapolis signed a consent decree, women like Pat Young got their chance.
She's now a lieutenant.
I felt that affirmative action probably had some bearing with me coming on the police department,
but I honestly felt it didn't have any bearing on me as far as getting promoted.
Young says she got her promotion based on ability and because she scored in the top 1% on department tests.
But Robert Allen disagrees.
He says high scores alone wouldn't have been enough.
I would rank her among our most qualified field lieutenants.
As far as her being in her position, you know, I'm going to say affirmative action had a lot to do with it.
Do I have any questions, comments, problems?
Okay, that's it. Please be careful.
The young people, the females, the blacks, Hispanics and other minorities, they don't realize what happened 20, 30 years ago
because they have got the chance.
But they only have this chance because of the affirmative action.
The problem that we have is that the younger kids or the young officers coming on cannot relate to how they got there
and what means it took them to get there.
I walked up to one officer when we had this FOP thing going on and I said, now remember, I said, you going to stay in FOP?
He said, I'm still a rookie.
I said, now remember now, that consent decree probably got you your job.
I thought it was going to hit me.
He said, no it didn't, no it didn't.
My college degree and me being a drill instructor in service got me my job, you know.
I got sick. I got sick. I come home and went to bed.
In Washington, others share Officer Larkin's worry about a return to past discrimination if the Justice Department wins.
You are not enthusiastic, as I understand it, about class-based relief.
And last year, when William Bradford Reynolds was nominated for the third highest position in the Justice Department,
it was his civil rights stance that was criticized.
Mr. Reynolds has become the scrooge of the Justice Department.
He has been stingy and mean-spirited in dispensing justice to the citizens of this nation.
Your critics claim that you're wasting the resources of the Division by seeking to reopen settled cases in 50 jurisdictions
that call for goals or quotas.
Now, why are you spending time trying to reopen cases? Your Department has already settled in court.
We have asked those jurisdictions to join with us to modify their decrees, not to undo what has gone on.
Reynolds' nomination was turned down by the Republican-dominated Senate Judiciary Committee,
but he continues to defend his interpretation of the Stats decision.
My effort was to, in good faith and with all good conscience, to read the Supreme Court decision as I believe it was written
and as I believe the majority of the court intended it to be read.
And there are those who disagree and feel that it is much more narrow than I would suggest,
and it applies only in the context of layoffs and seniority programs.
But longtime civil rights activists say Reynolds' actions contradict his statements.
Ralph Neese, executive director of the Leadership Conference on Civil Rights.
So it's very unfortunate, substantively, that they're misinterpreting the Stats decision,
but it's also terrible that they're going about it in such a demagogic way,
and using the Stats decision to reopen old wounds and to go into areas where there have been consent decrees
and where these affirmative action goals and timetables have been working well for many years.
We have been characterized as being unfeeling and insensitive and seeking to reverse civil rights
when exactly the opposite is the case, when we have been advancing, I think,
every fundamental civil rights principle that is important to this country.
We've been enforcing the laws more vigorously than they've been enforced before.
This is perhaps the worst administration in a half a century with respect to civil rights enforcement.
The Department of Justice in particular has tried to repudiate the civil rights enforcement policies
of every Democratic and Republican administration over the last three decades.
Which is less moral, to do what we're doing with affirmative action
or to roll the clock back on the civil rights movement for 25 years
and say we're going to go back to the way it was before when there was no commitment,
and all of it was voluntary, and then the white males will get the majority of the jobs.
Not everybody agrees with that, especially black conservatives
like George Mason University economics professor Walter Williams.
I think that if I were a member, if I were the grand dragon of the Ku Klux Klan,
and if I were trying to recruit membership, those kind of programs
where people are shown preferences with regard to race would be one of my favorites.
I think that in a society where women get about 65% of what men get for comparable work,
and in a society where the average black family makes $8,000 less than the average white family,
that it is right and proper and in keeping with the Constitution and our Judeo-Christian heritage
to try to help those people to get an equal opportunity, which is what affirmative action is all about.
If you get rid of quotas, I don't believe that the alternative is that ugly past that we had in the United States.
And I think that if we get rid of quotas, indeed it may improve racial relationships,
and it may indeed mean that if a black gets a high-paid job, he will be respected as an individual.
I just don't share that scenario with the people in Indianapolis.
If the Justice Department wins and affirmative action is taken away from our particular city,
I see a lot of problems for us.
Because the younger generation will not tolerate the things that we tolerated when we came up.
It was a member of the older generation, Carl Stotz, who opened the doors by fighting for his rights.
But the irony is that he may have set off a negative chain reaction that might close those same doors.
Bradford Reynolds was the hatchet man for Ronald Reagan to do away with affirmative action,
kill it in his track, and they never could find a reason to really, really do it.
And this was a good way, a good reason to do it.
Recently, the Supreme Court backed up its decision in Stotz with a similar ruling in a case involving teachers in Jackson, Michigan.
In a five-to-four decision, the Court again said seniority takes precedence over affirmative action.
But the two cases the Court is now deliberating are at the heart of the survival of affirmative action, hiring and promotion.
Joining me to talk about those cases are Professor Lawrence Tribe of the Harvard Law School and the noted constitutional expert
and Assistant Attorney General William Bradford Reynolds of the Justice Department.
Mr. Reynolds, let me begin with you. You have said that the Jackson teacher's decision was further proof of the rightness of your position.
However, other legal experts have said that they read what the judges did as having endorsed affirmative action in hiring and promotion.
Are you reading these decisions too broadly?
Well, I don't think I am. I think that the decision that came down a few weeks ago, the Jackson School Board decision,
is one where the Court really recognized an awful lot of fuzzy thinking in this area by the lower courts
and gave us a very tight, precise analytical framework for how we handle the kinds of issues that deal with affirmative action in an employment context.
And I think in doing that, the Court laid out a framework which is very much in line with what the Justice Department has been using
and advancing in the courts over the past five years that leads to the conclusion that if you use race preferences in any context,
it's going to have to come under the most compelling of scrutiny, exacting of scrutiny, and be justified by the most compelling of reasons.
Even though these cases didn't involve, directly involve hiring and promotion?
That's right. I think that what the Court did is gave us a way in which to look at these cases,
whether it's layoffs or hiring or promotions, and how to analyze these issues in order to arrive at the proper kind of remedy
in the event that you do have strong evidence of discrimination.
Mr. Tribe, do you read it the same way?
Well, I fully agree that the Court gave us a way to look at the cases, but I don't think it's the administration's way or Brad Reynolds' way.
Both Justice Powell writing for a plurality in the Jackson case and Justice O'Connor summarizing the views of the justices
made clear several principles, all of which are at direct odds with what the Justice Department has been arguing in a number of cases.
They made clear, first of all, that government does not have to be race blind as long as it acts in reasonable relation to past racial problems.
They made clear, secondly, and this is very important, that remedies in order to be constitutional, remedies by local government
or by public unions need not be limited to making whole the proven victims of discrimination.
That was clearly the Justice Department's position, and it was emphatically rejected.
And finally, the Court has made clear, and this is made clear in several of the opinions,
that the problem of overcoming racism is so fundamental and so difficult
that it is not possible to find a solution in which some innocent people will not suffer
as long as equitable sharing of the burdens is followed so that people are not needlessly laid off simply because they are white.
In hiring and promotion, goals can be set which require all of us, innocent as well as guilty,
to bear some of the burden of overcoming a legacy of racism, and the Court has made that really very clear.
All right, so Mr. Tribe is seeing something there that you're not seeing.
Mr. Reynolds, let's assume the Court rules the way you'd like it to rule in these other two cases.
What does that mean for affirmative action plans around the country?
Well, I think that what it means is affirmative action plans are alive and well,
but I think that we have to define what we mean by affirmative action.
The Department of Justice has been advancing affirmative action plans and its decrees for the past five years.
What we don't include are preferential goals or quotas,
but we do say that an affirmative outreach, recruitment, and training program is an essential part of the remedy,
that it has to go beyond curing the individualized discrimination and have an affirmative action component,
and I think that's precisely what the Court is recognizing.
It says you can use in some extraordinary circumstances perhaps racial hiring goals,
but only if they're the least intrusive remedy you can come up with.
So what will your department do next, assuming that's the way the Court rules?
Well, I think what we will do is we will follow the Court's instructions.
When we get to the point of having found discrimination and seeking to remedy it,
we'll put in a narrowly tailored relief, which the Court says the Constitution requires.
That relief will be one that indeed does remedy the wrong,
but also is least intrusive on the rights of innocent third parties,
and I think that's the kind of an affirmative action plan that is non-preferential,
which will in virtually all cases be much less intrusive than a hiring goal or a promotion goal
that is indeed based on preferential treatment by race.
And if that happens, what are the implications of that?
Well, I think we have to step back just a moment.
The Court has said that numerical goals set aside for minority contractors are perfectly consistent
with the ideal of equal protection of the laws.
The Court held that in the Fuller Love case a few years ago.
The Court has upheld under a challenge under the civil rights laws
a program setting aside a certain number of places for qualified black workers, for training programs.
If Mr. Reynolds' view were to prevail, and we were simply to reach out and look for minorities,
but not assure the efficacy of our efforts with numerical goals and timetables,
we would be making a promise to the ear that would be broken to the hope.
We would not really be solving the problem of race discrimination in this country.
How do you respond to that?
I guess the response is really in the evidence of the past five years
where we've been putting in place an affirmative action plan that indeed does not rely on preferences,
that has worked extraordinarily well, it's been very effective in opening doors of opportunity
and bringing in large numbers of minorities into the workforce,
bringing them in on the basis of their qualifications, and in doing so,
assuring an upward mobility that is lost if you rely on some kind of a numerical remedy
that does not take into account the qualifications.
Do you agree it's been working well, Mr. Trotter?
It's not been working nearly well enough, and I don't agree that there is some trade-off
between qualifications and affirmative action.
Unless we have meaningful efforts backed up by real goals and numerical timetables,
we will not have the most diverse qualified workforce
because there are so many sources of persistent, hidden racism in the system
that despite the goodwill of Brad Reynolds and others,
we will not cure the problem without taking those more dramatic and concrete efforts.
It has not been working well enough.
Arguments like that don't make any difference with you, is that right?
Well, no, actually, I'm not so sure that we disagree that much
with the underlying objective that he's talking about.
It does seem to me that one of the things we have to recognize
is that we are indeed in a multiracial, multiethnic society.
The goals and timetables that we've been using have been concentrated very much
on a one-dimensional plane of black versus white.
We're for a diverse workforce too, but we do it by affirmative recruitment and outreach,
which brings in not just blacks but also Hispanics and all sorts of other minorities.
But that's not enough to convince you, Mr. Tribe.
I would like to see the results,
and I don't think that the rhetoric and the reality really match yet.
Mr. Tribe, Mr. Reynolds, thank you both for being with us.
Thank you.
Next week on Frontline, a report on a revolution.
We are now living longer than ever,
and this is having a profound impact on those of us whose parents
are living well into their 80s and 90s.
Who am I?
I don't know.
Try to think.
Why don't you tell me?
I'm your daughter.
Well, that's good.
Older Americans are living longer than ever before,
but their children often find themselves unprepared
for the reality of taking care of their parents.
You go out to dinner and you feel, well, gee, mom's been cooped up in the house all week long.
We ought to take her in.
She gave birth to you and she took care of you.
Maybe now it's your turn.
The program is called What About Mom and Dad?
It is next week on Frontline.
I'm Judy Woodruff.
Good night.
For a transcript of this program, please send $4 to Frontline, Box 322, Boston, Massachusetts, 02134.
Frontline is produced for the Documentary Consortium by WGBH Boston,
which is solely responsible for its content.
Funding for Frontline was provided by this station
and other public television stations nationwide
and by the Corporation for Public Broadcasting.
Thank you.