The Nation's Pulse

...In one sense, the direct impact of Runyon is not terribly discomfitting: reasonable men place no social value on private race discrimination per se...

...I desire no abdication by the judiciary of its responsibilities in the task of eliminating discrimination...

...The Court's principled stand in Washington against the facile use of disproportionate impact as a shortcut for "proving" racism thus arrives in a murky context of ambiguous and at least marginally conflicting precedent, all of which suggests that the Court is still slowly feeling its way through the thicket of race, testing, and jobs...

...This last issue may well prove the most significant...

...officials could affirmatively demonstrate that the test directly measured subsequent on-the-job performance...

...It is difficult, I grant, to discern a pattern emerging from these three most recent opinions on discrimination: they involve different factual and legal questions, and the philosophical underpinnings of each seem to point in different directions...

...The first decision, Washington v. Davis, basically involved a contention that the written personnel test administered to applicants for the District of Columbia police force was racially discriminatory in Peter Rusthoven is an attorney in Indianapolis...

...Discrimination and the Changing Court violation of the Constitution, solely because the percentage of blacks failing was significantly higher than that of whites...

...The final June decision of the Supreme Court involving discrimination is Runyon v. McCrary, a case involving private rather than public schools...

...One feels less than overwhelming sympathy for fired thiefs who complain that not all thiefs were fired...

...The Runyon decision indicates that the Court is, on this issue, more concerned with the immediate harm of segregated private schools—even if this involves interpreting a significant statute, with broad potential for governmental interference in private choices, in such a way that it has no discernible limiting principle...

...Nevertheless, in these days of reverse discrimination and so-called "affirmative action," McDonald emerges as a welcome reassertion that our guiding ideal in civil rights should be race-blind decision-making, rather than preference for (and, by unavoidable implication, condescension towards) a particular group...

...The Circuit Court of Appeals, in overruling a trial court decision permitting use of the test, held that lack of discriminatory intent in enactment and administration of the test was "irrelevant," that the "critical fact" was the higher black failure rate, and that this "disproportionate impact," standing alone, was sufficient to prove discrimination unless D.C...

...At a miniThe Alternative: An American Spectator August/ September 1976 27 mum, however, I believe that all three cases indicate that both the Court and the nation as a whole will continue to be faced with exceptionally troublesome issues in our efforts to deal with the problems of race...

...1981 (part of the Civil Rights Act of 1866) prevents purely private schools from discriminating on the basis of race in admissions...

...The Supreme Court, however, refused to accept the argument that disproportionate impact necessarily proves the existence of discrimination...

...Thus, the Court indicated that as far as Constitutional requirements are concerned, every official device for measuring an individual's ability to perform a job need not yield statistical results that correlate with overall black/ white population percentages—a healthy development in an era when all too many of our scholars and commentators glibly and almost reflexively attribute all evidence of black social and economic disadvantage to "racism...

...as is enjoyed by white citizens" mean that blacks were to be granted simply the same legal capacity to enter into enforceable contracts, or does it mean that private individuals could be forced to contract with blacks whenever they would in a similar situation contract with whites...

...Second, if one adopts the latter interpretation, does the provision violate Constitutional rights of privacy and freedom of association of those forced to contract...

...But it is vital, as we grapple with that problem, that we recognize that its final solution, if one there is to be, willrest less on our laws and courts than on our virtue as a people...

...that the variety of contexts in which such issues arise is virtually endless...

...Ironically, however, the Washington decision left untouched a number of earlier cases which rest not on the Constitution but on Title VII of the Civil Rights Act of 1964...

...do desire, however, clearer self-imposed limits on what that responsibility entails than have thus far been articulated...

...In terms of their immediate substantive resolution, the results of two of these cases are somewhat encouraging, while that of the third is rather disturbing...

...the Runyon decision is indicative of a still powerful contrary tendency...

...McDonald involved a claim by two white employees, fired by a company for stealing from a shipment, that they had been discriminated against due to their race in violation of Title VII of the 1964 Act, since a black employee who had participated in the same theft had not been fired...

...that portion of our heritage which traces to human slavery will no doubt continue to plague us yet a while longer...

...it seems equally apparent that in holding that the provision as so interpreted is Constitutional, the Court was adopting a significantly narrower view of rights of privacy and association than it had often done in the past...

...and even though it furthers the unfortunate impression that if the Court feels an issue is "important" enough, it will "legislate" by "interpretation" its own view of proper social policy...

...In a 7-2 opinion, the majority held that "the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose...

...The most controversial area of decision-making in this field has, of course, involved public school desegregation—a series of cases which began in 1954 with the Court's courageous (though technically inelegant) ruling against de jure segregation in Brown v. Board of Education, and which now centers on the far more troublesome question of forced busing to "alleviate" what is often simple de facto segregation in income and housing patterns...

...The Nation's Pulse Peter J. Rusthoven In the last thirty years, no single problem has proved more vexing and intractable to the United States Supreme Court than the general issue of discrimination based on race...

...Quite simply, I prefer allowing bigots to set up their lily-white private schools and be damned, to having government intrude yet further into the realm of private associational choices ofindividual citizens, misguided though they be...

...to make and enforce contracts...

...At the risk of placing myself in that position, I would contend that precisely such issues of overriding importance were involved in the Runyon case...

...In addition, the case stands as another example of the federal government's extraordinarily heavy hand *Two justices disagreed on the question of whether the Civil Rights Act of 1866 was also applicable to the case...

...McDonald has its troubling aspects...

...The second encouraging recent decision is McDonald v. Sante Fe Trail Transportation Co.—although here, too, one's final reaction is somewhat mixed...

...Less clear is how one reconciles McDonald with the plethora of decisions at all levels of the federal judicial system which through hiring quotas and a host of other devices require race-conscious, preferential discrimination...

...26 The Alternative: An American Spectator August/ September 1976 in the entire field of private employment decisions (a subject beyond the scope of the present essay...

...Although I have been at some pains to report these cases with only such minimal distortion and oversimplication as is unavoidable in a short summary, my interest here extends beyond accurate reportage of particular results of individual Supreme Court decisions...

...These latter decisions do, in essence, establish disproportionate racial impact of job testing as sufficient by itself to prove violation of the law, unless anemployer can affirmatively establish, in accord with complex and burdensome Equal Employment Opportunity Commission guidelines, that the test is rooted in "business necessity...

...The Old Testament's statement that God will visit the sins of the fathers upon the children unto the third and fourth generation strikes me as peculiarly relevant to America's continuing racial dilemmas...

...The Court unanimously* decided that the 1964 Act prohibits discrimination against whites as well as blacks...

...The basic issues of the case can be summed up in two questions: First, does § 1981's provision that "All persons within the jurisdiction of the United States shall have the same right in every State...

...The Washington and McDonald cases at least suggest that the Court may be moving toward a more balanced and restrained view of its role in this field...

...that striking a proper balance in each of these situations between the desire to end bigotry and competing social values is a well-nigh impossible task...

...and that a separate and equally important question is precisely what role our government, and more specifically, our laws and our courts, should have in determining where that balance will in fact be struck...

...The thorough obnoxiousness of such discrimination, however, usually places reasonable men who believe that other issues may yet be more significant, in the uncomfortable position of arguing, against the powerful emotional appeal of a particular situation, that matters of overriding importance to a free society require allowing private parties their freedom to behave in an obnoxious fashion...

...In Runyon, the Court by 7-2 vote held that 42 U.S.C...

...The Court's discussion of these issues would seem highly technical to most non-lawyers: a good deal of the debate involved whether § 1981 was based on Congress's power under the Thirteenth Amendment to eliminate the "badges and incidents of slavery," which arguably permits regulation of private contractual decisions, or whether it was based instead on the power granted under the Fourteenth Amendment to insure "equal protection of the law," which is directed only at state action...

...It is fairly apparent, however, that in rejecting the "legal capacity" interpretation of § 1981, the Court was once again extending this particular statute, a Reconstruction-era exercise in bad draftmanship, far beyond what its authors had intended it to cover...

...Let us hope that the former outlook prevails...

...But if the public school decisions have occupied most of the headlines and public attention, they have hardly been the only cases on the Court's overcrowded docket involving relations between blacks and whites...

...Three recent opinions—all handed down in June of this year—indicate that the problems of race continue to arise in a variety of legal settings, and continue to involve the nation's highest judicial panel in increasingly complex and intricate judgments with wide-ranging implications for the public and private life of the land...

...Justice Marshall, the only black Justice in the nation's history, concluded in his opinion that the law "prohibits all racial discrimination in employment," regardless of the race of the complaining individual...