Constitution/Standing Tall on Realignment

...More recently the Justice Department intervened for the first time in behalf of a local school board (Norfolk, Virginia), asking an appellate court to uphold a decision bringing a court-ordered busing plan to an end, how that the district had achieved a "unitary" school system...

...The Administration can be accused of arbitrarily pulling back here, or of making false distinctions there...

...as the right to privacy comes to mean the right not to have to wait 24 hours before killing a potential human being...

...and that those victories, combined with a policy of hunkering down and holding the line in the civil rights/constitutional area, can set the stage for eventual success here as well...

...They understand that immediate nullification of a decade or two of constitutional and legislative history is impossible...

...Such a bill is likely to pass in 1985...

...For every victory in one court there may well be a defeat in another: Shortly after the Memphis firefighters case, a federal judge ordered the city of Detroit, under the equal protection clause of the Fourteenth Amendment, to rehire 630 black police officers originally hired under a quota system and then laid off because they lacked seniority...

...But it has certain drawbacks...

...Judges are no longer imposing many new busing orders, and blacks are increasingly joining whites in requesting that existing ones be dropped...

...The strategy of incremental rollback has much to be said for it-and one can only admire the patience and fortitude of public servants, like Reynolds, who have been willing to sign on for the long march...

...As for issues like abortion, school prayer, and tuition tax credits, it became clear early on that the votes were not there in Congress...

...But across the board tax rate cuts, and tax simplification, seemed quixotic a few years ago too...

...Similarly, conservatives complained when, during the election campaign, the White House refused to allow the Justice Department to intervene on behalf of the State of Washington in its appeal of a federal judge's "comparable worth" decision...

...To the degree that incremental rollback depends on a step-by-step approach, and requires relative silence about its destination, it is difficult to rally support for the strategy...

...There is no point in picking bitter and divisive fights in order to make-and most likely fail to make- abstract points...

...From the beginning the Reagan Justice Department has refused to ask for busing as a remedy in lawsuits it has brought, and it has told Congress that it does not believe busing is necessary to vindicate the right to non-discriminatory public education...

...The strategists of benign neglect, in other words, fail to see that political realignment has to be accompanied by, and to some degree based on, a constitutional realignment...

...If Edwin Meese as Attorney General were to embrace such a strategy, and have success in fighting for it within the Administration, incremental rollback could become far more prominent in the second term...

...But beyond its natural appeal to the timid, there is a respectable strategic case for benign neglect...

...And one could imagine legislative measures limiting court-ordered remedies, curbing class actions, tightening standing regulations, and more, in order to return the courts to their proper judicial role...

...One could imagine proposing legislation to clarify the meaning of the 1964 Civil Rights Act, to the effect that the purpose of the Act was-and is-to insure the colorblind treatment of individuals by public entities (and private employers engaged in interstate commerce), thereby overturning the Supreme Court's interpretation in Weber and most of affirmative action...

...These judges can begin to check liberal excesses and restore sound constitutional principles without endangering the prospects for a Republican successor to Reagan-who would then be able to appoint more judges...

...Although the decision could be understood to rest merely on the fact that seniority rights are explicitly protected in Title VII, and although the Supreme Court said nothing about the impropriety of the original hiring quota, Reynolds quickly seized on language in Justice White's opinion that seemed to suggest a broader principle of no preference except for individual victims of discrimination...

...Whatever might have been possible had a strategy other than benign neglect been pursued beginning in 1981, it is now clear that in its remaining four years the Reagan Administration will not bring about a constitutional realignment...

...It is a plausible case, if not an especially edifying one...

...Which strategy ought the President to choose...

...one could imagine an executive order forbidding any federal agency to keep statistics on the race or sex of its employees...

...These elements can be mixed and pyramided in such a way as to build support without giving the opposition a very clear target to shoot at...

...and the strategists of benign neglect do expect to make long-term progress on this front...

...as the First Amendment is interpreted to forbid the posting of the Ten Commandments in a classroom-all of these make more evident how questionable were the first steps down the slippery slopes...

...Similarly, since the Court is going to allow states to chip away at the "wall of separation" preventing prayer in schools and aid to parochjal schools, there is no need to make this a major national issue...

...In 1982, the attempt to resist virtual proportional representation by race during the re-authorization of the Voting Rights Act made the Administration the target of bitter criticism and the object of little gratitude-and failed...

...But ultimately it is not convincing...

...That these judicial appointments need to be respectable, and to include a decent number of women and minorities so as to minimize opposition, is no real problem: Conservative ideologues should recall how foolish they now look over their bitter complaints about Sandra Day O'Connor...

...And the way may then be prepared for an attempt to secure congressional action to establish some sort of statute of limitations on federal court control over school districts...

...Take busing, for example...

...By the end of his second term, President Reagan should have been able to appoint not only three or more Supreme Court justices, but something like one-third of all federal judges...

...On the other hand, to the extent that the Administration does lay out its principles and goals-as with Reynolds's proclamation of an "overarching philosophy" that the Constitution must be colorblind-then the fact that it continues to operate internally under race-conscious goals and timetables, or that only 2 out of 109 agencies followed the Justice Department's, lead in refusing to provide the EEOC with goals and timetables, suggests that the Administration does not take its own statements seriously...

...The Justice Department has also argued this view in amicus briefs filed in private lawsuits...

...it is wishful thinking to believe that they can shoulder the burden themselves...

...The best way to advance such a vision is through proposed legislation, well thought-out and forcefully defended...

...Above all, there are the courts...

...From there the movement could proceed with lawsuits, regulations, and legislation that would further protect life and further undermine the reasoning of Roe v. Wade, eventually leading to its reversal...

...Given the dif: ficulty of rallying support for a policy of incremental rollback, and given its questionable prospects for making an appreciable difference, it may be time to stop trying to unravel the unravellable and instead to take a deep breath and try cutting the Gordian knot...

...Sound strategy is to focus on the winning issues of the future, not to refocus attention on symbolic issues of the past which only carry negative connotations for conservatives...

...Each can be supported by a plausible argument...

...and though congressmen and senators can do their part, such proposals will have incomparably greater authority if they come from the President...

...Now, recognition of this fact doesn't mean that nothing can be done on constitutional issues...

...But it now looks as if the State will win on appeal anyway...

...Reynolds has followed a version of this strategy...

...Only the muting of the early emphasis on religion and politics made success among Yuppies possible-just as the muting of differences on women's issues enabled Reagan to minimize the effect of the gender gap...

...Why, for instance, has the Justice Department been so exercised about Dade County's program of minority business set-asides but not about the Commerce Department's-especially when the Supreme Court has upheld congressional set-aside legislation...

...What is more, as we can see from the first term, precipitate and foolhardy sallies in this area actually endanger the prospects for an eventual breakthrough...

...each has distinct policy implications...

...Constitution STANDING TALL ON REALIGNMENT by William Kristol Three strategies will compete to guide the Reagan Administration in its second term in the area of civil rights and constitutional issues...

...Of course, trying to cut constitutional Gordian knots does not preclude an interim strategy of incremental rollback...

...These might be called the strategies of benign neglect, incremental rollback, and cutting the Gordian knot...

...This might in turn set the stage for some modification of the executive orders that establish goals and timetables throughout the federal bureaucracy and for those who do business with or receive money from the government...

...that advances on other fronts are far more likely...

...But if dissatisfaction is to become constructive action, an alternative vision needs to be put forth coherently and boldly, a vision that begins to redefine the terms of debate and to offer principles to which good men can repair...

...But if it stands tall on constitutional issues, it may still lay the groundwork for one.still lay the groundwork for one...

...And a constitutional realignment cannot be brought about solely by the courts...

...Leaving aside the ignobility of it all, I doubt that conservatives can be long-term winners at this game of doling out government favors...

...In these circumstances, a strategy of incremental rollback runs the risk of failing to build momentum, and becomes a series of episodic and isolated sallies launched against entrenched forces supported by conventional wisdom and institutional inertia...

...Similarly, in the field of employment, the Civil Rights Division has adopted the view in its enforcement proceedings under Title VII of the 1964 Civil Rights Act that compensatory preference be limited to the individual victims of discrimination, and not casually extended to others who happen to share the same race or sex...

...The judgment that nothing in the Internal Revenue Code prohibits tax exemptions for schools with distasteful racial policies called forth a firestorm of attack-and resulted in a humiliating 8-1 defeat in the Supreme Court in the Bob Jones case...

...There will thus be an overwhelming temptation to pre-empt...

...Thus one can start with modifications of enforcement policy, and use changes in litigation strategy to secure some helpful court decisions...

...This is clear from the 1984 campaign...

...This is the case for benign neglect...

...One could imagine, for example, an executive order doing away with goals and timetables in the federal government...

...and, in fact, by refraining from making opposition to comparable worth a "Reaganite" position, the Administration may have made it easier for liberals (e.g., the Washington Post) to start raising serious questions about it...

...And when some student claims psychological harm from a school prayer, proponents have to be able to explain why local self-government and community mores deserve some constitutional support...

...The courts can participate in and follow through on a constitutional realignment...

...On the basis of these one can move to reform executive orders and regulations, eventually laying the groundwork for legislative proposals...

...there will be even fewer votes this session...

...Examples of such counterproductive efforts abound...

...Enterprise zones are undoubtedly better than CETA programs...

...The Administration thus avoided a politically damaging symbolic action...

...Cutting the Gordian Knot There are various ways to go about cutting the knot, ranging from executive orders to legislation to constitutional amendments...

...Galloping bracket creep and the ever-increasing accumulation of complications in the tax code eventually made radical reform seem plausible...

...One could imagine legislation repudiating the use of effects tests in judging discrimination...

...And when the Administration did prevail in court, with its argument for a (somewhat) limited reach for the non-discrimination provisions of Title IX of the 1972 Education Amendments, Congress came within a hair's breadth of overturning that decision, and indeed of broadening the scope of affirmative action regulations, through the Civil Rights Act of 1984...

...For one thing, the effort to foster a general neglect of civil rights and constitutional issues will fail: If conservatives do not move ahead with their agenda, the left will still move forward with its, and conservatives will face the choice of giving in or fighting from a weak, defensive position...

...And surely the Republicans' strength among young voters rests upon the promise of economic growth and peace through strength, not on opposition to abortion, the ERA, or affirmative action...

...Then such statutes would be defended in test cases that would legally establish the "humanness" of the unborn child-at least in the latter stages of pregnancy...

...It for the most part guided the Administration during the first term, because it is the strategy that follows the course of least resistance, and therefore demands little in the way of political courage or daring...

...At a conference last year of Americans United for Life, Professor John Noonan urged the right to life movement to do much the same thing by, say, pushing for state laws to prohibit late-term abortions...

...In fact, incremental rollback can probably work only if it is guided by explicit statements of constitutional principle that begin to dislodge the opposition from the moral high ground...

...During the first Reagan term this approach found a home in the Civil Rights Division of the Justice Department, under the leadership of William Bradford Reynolds...

...In the Memphis firefighters decision last spring, the Supreme Court overturned a district court order that had restricted layoffs to white firemen in order to preserve the jobs of black firefighters hired under a previous quota...

...And they hope that even a few small steps in the right direction will build momentum and lead to further progress...

...Indeed-the case for benign neglect continues-it is not simply that these fights cannot be won...

...Indeed in many of these areas Congress is still moving in the opposite direction...

...In that case, why should congressmen or judges-or the public-do so...

...Why expend political capital on fights that cannot be won...

...One could imagine legislation to test existing Court decisions, or constitutional amendments to overturn them, for the sake of restoring state or local self-government in areas such as school prayer, pornography, and abortion...

...As civil rights becomes affirmative action, which is then applied not merely to jobs but to salaries (comparable worth...

...without the energetic support of a constitutionalist party in Congress and the executive branch, the courts will be unable to accomplish much...

...More important, perhaps, is that the effort to bring about a realignment on the basis of economic well-being and peace will fall victim to the first badly timed downswing of the business cycle, or the first messy international crisis...

...the sound conservative strategy is to focus the debate on quality education, and to allow busing gradually to fade away...

...This, to a large degree, was the strategy of the civil rights movement both before 1964, in securing civil rights, and after, in constructing on the back of the Civil Rights Act the whole edifice of regulations, executive orders, and court decisions that sustain quotas, busing, and the like...

...He announced the Civil Rights Division would begin to move to modify many existing lower court decrees that did impose quotas benefitting those who were not direct victims of discrimination...

...So the mounting irrationality of our constitutional law and practice may open the door for a reconsideration of alternative (in fact, traditional) constitutional principles...

...Thus it might be possible to do away with busing without having to fight out the contentious question of the propriety of this judicial remedy in the first place...

...In sum, it is hot clear that a strategy of incremental rollback is sufficient, given the fundamentally misguided and incoherent state of our constitutional and civil rights law...

...If this decision is upheld, the Justice Department will be in a position to encourage many more of the 500 or so school districts laboring under federal court decree to bring suit asking that they now be freed from court supervision...

...Finally, given the character of our law schools and Bar, and considering how entrenched certain assumptions have now become in our constitutional law, it would be unreasonable to expect much boldness from most of President Reagan's judicial appointments...

...Benign Neglect Benign neglect must be judged the odds-on candidate to prevail...

...Incremental Rollback The second contender in the civil rights/constitutional field is a strategy of incremental rollback...

...but when the first study comes out showing that women and blacks are under-represented in one or another of these zones, proponents need to be able to appeal to the principles of a colorblind Constitution and limited government to explain why this does not require corrective action by government...

...And even the attempt to find a more fundamental basis for realignment in a vision of an opportunity society will fail unless it is based on a commitment to certain constitutional principles...

...And as blacks and women move into the employment mainstream, the whole problem of affirmative action will begin to solve itself...

...None of this legislation would be likely to pass, at least in the near future...

...For one thing, many of the constitutional or quasi-constitutional practices to which conservatives object are embodied in legislation and executive orders that have to be corrected by legislative or executive action...

...That case is based on the judgment that the civil rights/constitutional area (that complex of issues ranging from affirmative action and busing to abortion and school prayer) is a minefield that conservatives cannot successfully navigate-at least for now...

...Advocates of incremental rollback acknowledge the constraints that so preoccupy the proponents of benign neglect...

...More important, they could alienate just those parts of the electorate that would be crucial to a lasting political realignment...

...The three agencies that refused to submit goals and timetables to the EEOC did submit current employment statistics broken down by race and sex...

...Furthermore, when the Court has tried to provide relatively sound interpretations of legislation such as the Voting Rights Act or Title IX, Congress has moved to overturn the Court's interpretation...

...However, they do not believe this should preclude attempts to reverse course...

...and benign neglect will become malign pandering, as in the case of President Reagan's major expansion, by executive orders, of "set-asides" for minority businesses, or the case of the President's designation, during the campaign, of Hasidic Jews as a "disadvan-taged" group, making them eligible for special federal aid and for the minority set-aside program...

...The larger point this analysis suggests is that many of these issues can be bypassed rather than confronted, because history is passing them by...