Weber was the first case in which the Supreme Court addressed Affirmative Action in private employment. In finding in favor of discrimination in this case, the Court used language just opposite from that used in so many previous such cases.

Reacting to discrimination claims in the steel industry, Kaiser Aluminum Company and its union, the USW, had agreed to a master contract that set goals for minorities working in the various crafts equal to that minority's proportion of the local labor force.

In order to implement the goals, the company established on-the-job training programs in which half of the openings were available to whites, the balance to targeted minorities. Acceptance to each portion was based upon seniority.

Weber was a white employee desirous of entering the training program, but with lower seniority than any of the whites selected, but higher than many of the blacks. He sued the company and union, charging that the enforced discrimination violated his own rights under Title VII of the Civil Rights Act of 1964.

Writing for the majority, Justice William Brennan acknowledged that there was validity to Weber's argument but, since the agreement to discriminate had been reached by private parties attempting to remedy perceived segregation in the crafts, Weber's suit could not be supported. Justice Brennan went on to note that Title VII did not prohibit all private, voluntary, race-based affirmative action programs.

The Court failed to define adequately the term "voluntary", inasmuch as members such as Weber had clearly not participated in the creation of the "program" beyond possibly voting for the master agreement in totum. The Court also failed to further illuminate the line between permissible and impermissible affirmative action plans.

By way of mentioning what the program in question did not do, the Court implied some guidelines for the future. The opinion pointed out that Kaiser's program did not require the firing of whites to make room for blacks, did not permanently hold whites back from promotion, and was temporary. In more vague terms, it also did not unnecessarily trample the rights of whites, and was designed to eliminate a racial imbalance rather than to maintain a racial balance.

These points belie reality, unfortunately. Affirmative action has hardly been temporary, although some state-level institutions are finally beginning to see the basic unfairness and are fighting to roll back their programs. The maintenance of racial balance did, in fact, seem to play a major role in the programs' goals, and whether they constituted an "unnecessary" trampling of the rights of members of non-targeted groups is a matter of perspective. Decisions by the Warren, and much of the Burger, Courts not only heaped constitutional opprobrium on programs clearly intending to discriminate on the basis of race, but even on those programs whose substantive results were discriminatory in the opinion of the Court.

The Weber Court's allowance that some "private, voluntary" discrimination is permissible, while admittedly closer to constitutional truth, has little to do with its consistent findings of the previous twenty-five years. Unless one views the Court as social engineer rather than constitutional bulwark.