Chipping Away at Civil Rights

By Alain L. Sanders

One of Ronald Reagan's main goals as President was to put his conservative stamp on the federal judiciary. His success on that score was dazzling. Thanks to the large number of openings that occurred during his two terms in the White House, Reagan was able to appoint 346 federal judges -- more than any other President in American history. "It is one of his most enduring legacies, and one of his most significant," says William Bradford Reynolds, the controversial former Assistant Attorney General for civil rights in the Reagan Administration.

Nowhere has that legacy been more apparent than in the makeup of the current U.S. Supreme Court. Three of its nine members -- Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy -- were appointed by Reagan. William Rehnquist, a Nixon appointee, was promoted to Chief Justice by Reagan. Often allying themselves with Byron White, they have anchored a conservative majority that seems increasingly bent on undoing much of the work of its liberal predecessors.

Last week, in two major civil rights decisions, the Supreme Court demonstrated its rightward drift. In an anxiously watched North Carolina case, the high bench unanimously reaffirmed a 13-year-old precedent prohibiting racial discrimination in making and enforcing private contracts. But by a vote of 5 to 4 -- with all Reagan appointees in the majority -- the Justices refused to extend the ruling to cover racial harassment in the workplace. Just three days earlier, in a case involving Birmingham fire fighters, the same five significantly lowered the barriers protecting court-approved affirmative- action programs from challenges by white workers.

The rightward shift on civil rights began to quicken in January, when the Justices ruled 6 to 3 that affirmative-action programs may be approved only after the strictest judicial scrutiny. The pattern became clearer two weeks ago when, by the now familiar 5-to-4 vote, the court gave large companies accused of discrimination a crucial procedural win. The Justices held that, contrary to previous doctrine, it is employees who must prove that imbalances in the racial makeup of their employer's work force result from practices that have no valid business justification. That ruling provoked a biting dissent from Justice Harry Blackmun: "One wonders whether the majority still believes that race discrimination . . . is a problem in our society, or even remembers that it ever was."

In last week's North Carolina case, a former teller at a Winston-Salem credit union sought to use a Reconstruction-era statute to make her case of racial harassment against her former employer. Among other things, she claimed that she had been asked to do menial tasks because she was black. Speaking for the majority, Kennedy said the statute prohibited "the refusal to enter into a contract" based on race, but not discrimination involving "postformation conduct" under a contract. Sniped dissenting Justice William Brennan: "What the court declines to snatch away with one hand, it takes with the other."

Civil rights advocates sharply criticized the decision. "How can you have a civil rights law that doesn't cover racial harassment?" asked Barry Goldstein of the NAACP Legal Defense and Educational Fund. "That is the most basic kind of discrimination there is. If you have a right to contract to get a job, don't you have an equal right to work there and not be called a nigger?" Racial-harassment claims will now have to be pursued under other, more cumbersome federal laws.

The fire-fighter case decided last week focused on two agreements between black job applicants and the city and county governments of Birmingham. The agreements, a pair of consent decrees approved by a federal court in 1981, stipulated hiring and promotional goals for blacks. In 1983 a group of white fire fighters sued to void the arrangements, charging illegal reverse discrimination. The high bench ruled that the city and county could not stop the white fire fighters, who had not been involved in the earlier case, from challenging the decrees.

Writing for the majority, Chief Justice Rehnquist declared, "A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings." Dissenting Justice John Paul Stevens protested that "a sideline sitter may be bound as firmly as an actual party if he had adequate notice and a fair opportunity to intervene and if the judicial interest in finality is sufficiently strong."

The Birmingham decision could easily prompt a flood of new lawsuits seeking to challenge long-established minority-preference programs across the country. Thus civil rights organizations are now fearful not only of losing future cases but also of seeing past wins vanish in a new wave of litigation. "The court raises the possibility of reopening cases that were resolved long ago," says Julius Chambers, director-counsel of the NAACP Legal Defense and Educational Fund. For Birmingham, the possibility of open-ended litigation is immediate and troublesome. "We have open sewers in some parts of our city," says Jim Alexander, an attorney representing the municipality. "There are uses for the money other than to pay lawyers."

The latest decisions signal a major shift from the court's more liberal days of the 1960s and early '70s, when civil rights rulings regularly expanded the legal avenues available to minority and women plaintiffs. "This is the first time in 30 years that the court has a working five-member majority saying that the goal is color blindness and gender blindness," observes conservative court expert Bruce Fein. The Reagan majority is carrying out this transformation not by frontally assaulting liberal precedents but by chipping at the edges of the civil rights edifice. Observes Georgetown law professor Eleanor Holmes Norton: "The Justices are finding technical and procedural outlets for their substantive hostility" to existing civil rights statutes and decisions.

Most observers believe the court's turn to the right has been accelerated by the arrival of Justice Kennedy, the latest Reagan addition to the court, who is serving his first full term. Kennedy replaced Lewis Powell, a moderate conservative on race questions, after the collapse of the nominations of Robert Bork and Douglas Ginsburg. "The civil rights community mounted this great offensive against Robert Bork," says Walter Burns of the conservative American Enterprise Institute. "Now they're getting what they feared, without him on the court."

In view of their cold reception by the Supreme Court, civil rights advocates are increasingly looking to the Democratic-controlled Congress for legislative remedies. Indeed, many of the Justices' rulings involve interpretations of federal statutes that could be easily overturned by passing new laws. "Hopefully, Congress will have the political will to do exactly that," says Harvard law professor Laurence Tribe. "The ball is back in Congress's court."

With reporting by Steven Holmes/Washington and Priscilla Painton/New York