Editorials

...But Chief Justice Rehnquist and Justice White had vigorously dissented in the original Runyon case, and now they have been joined by the three Reagan appointees to the Court (Kennedy, Scalia, and O'Connor) in calling for the rehearing of Runyon...

...For example, the courts have noted repeatedly the importance of Section 1981 's "full and equal benefits clause'' in assuring that the "equal protection doctrine" of the Fourteenth Amendment, as well as Title VII of the 1964 Civil Rights Act, are to be applied successfully...

...Throughout the rest of his journey, on trains and in hotel rooms, between visits to penitentiaries and attendance at conferences, Paton wrote his story...

...Despite these restraints, the fact of the occupation plus the Israeli response to the uprising have brought on pressure for North American Christians and Jews to speak out "against the occupation in solidarity with Israel's best interests...

...April 1988...

...The sudden and electrifying decision of the Court's new majority to call into question such firmly established doctrine (unbidden by any party in the case) means that unsettled times may lie ahead for civil rights enforcement...

...Of course, laws are limited in their ability to change people's attitudes toward the sick and elderly...

...Still, government's duty is to protect its weakest citizens, in part by passing legislation which fosters attitudes of respect and genuine care for the helpless...

...Conservatives in general resent regulations that tend to place any limit on private contracts...

...Nursing homes have been known to hire aides without any training, to skimp on nursing care, and to place arbitrary and unnecessary limits on patients' rights...

...The net effect: malnutrition and death from starvation, especially among infants and children...

...will prove helpful in the continuing debates...

...These hills are grass-covered and rolling, and they are lovely beyond any singing of it...

...but that society itself would perceive that the nation's commitment to achieving racial equality-wrought so painstakingly and incrementally over the last 125 years and still incomplete-has been brought to a sudden and gratuitous standstill...

...The new law has real bite...

...But there must be stability as well in the Court's patterns of decision rendering, as major figures on the Court have argued...

...I drank my white tea and then went over to the black tables...

...Congress, too, deserves credit for its tenacity in resisting the president's plans in 1981 to ease federal regulations for nursing homes, despite the successive studies which have repeatedly uncovered evidence of laxity and abuse...

...In my anger 1 could have spent the rest of the afternoon at the black tables, but 1 had white guests to consider, so I returned to them.'' These events, he says, "condemned me to a struggle between literature and politics that has lasted...

...Finally, Robert McAfee Brown (Christian Century, April 6,1988) proposes some ground rules for Christians '' Speaking About Israel" that will prove helpful in the continuing debates...

...There has been fraud in Medicaid and Medicare billing, which, though it may not directly affect care, does suggest the ethics and attitudes of many nursing home operators...

...The new legislation includes a detailed slate of patient protections and standards for nursing home staffs that will affect more than 1.3 million people in nursing homes covered by federal Medicaid or Medicare, and 1.7 million others who receive home care also funded through these programs...

...But the real issue is not whether apparently settled questions of the law can or cannot be reexamined, modified, or overturned by a new constellation of justices...

...It is, rather, what changes in the political makeup of the Court determine the grounds on which crucial decisions should be reconsidered...

...ALAN PATON Alan Paton died April 12,1988 at his home near Durban, South Africa...

...In 1975, in Jones v. Railway, the Supreme Court recognized that Section 1981 afforded a federal remedy against racial discrimination in employment...

...Over the past decade-following in the train of the civil rights era-Section 1981 has blossomed from a little-known Reconstruction-era statute into a powerful legal weapon for overcoming both private and public discrimination...

...The military has decided to create a security zone 4,000 miles long and 93 miles wide, along Brazil's borders with Peru, Colombia, Venezuela, and the three Guianas...

...to be free from physical or mental abuse, corporal punishment, involuntary seclusion...

...His autobiography gives a moving account of the experience that led him to set down the first sentences of the book: While seated in the cathedral of Trondheim in Norway, "I was in the grip of powerful emotion, not directly to do with the cathedral and the rose window, but certainly occasioned by them...

...Paton struggled many long years in South Africa...

...During his confirmation hearings last December, Justice Kennedy, whose swing vote put into motion the directive to rehear Runyon, testified that he saw no reason to try to reverse the expansion of criminal defendants' rights.' 'Since it's established," Kennedy reassured the Senate Judiciary Committee, "it's entitled to great respect...

...The Consolatas have been removed from their mission, the military is moving in, free-lance, "illegal" prospectors have begun to pan for alluvial gold, and the Yanomamo way of life is threatened...

...There is no doubt that it is the prerogative and duty of the Supreme Court to reverse decisions-even long-standing ones of its own making-which time and new insights reveal were either incorrectly argued, erroneously decided, or subsequently falsely applied...

...In recent years, some of those who oppose a broad reading of Section 1981 have been made uneasy by its successful application in cases concerning the inequitable sentencing of blacks and whites, and in cases of police misconduct where racism was a factor...

...This is a good law, but implementation will be a struggle- the reform means added costs to federal and state governments as well as to patients not covered by Medicaid or Medicare, and an increased demand for nurses already in short supply...

...Thus Justice Black-mun saw fit to write in his dissent to the rehearing of Runyon, "that racial discrimination in certain other contexts is not actionable independently of Section 1981...

...What is at stake in the redeciding of Runyon is not only that proven antidiscriminatory remedies might no longer be so readily available to those seeking redress under them...

...to participate in planning their own care...

...We hope that as he and the whole Court set out to review the findings of Runyon and its later applications, they will do so with the utmost respect for judicial precedent while keeping in mind the needs of all our citizens...

...Yet he criticized this new policy as part of a perennial and unsuccessful pattern in Brazil: "Because of the social, economic, and political threat represented by the millions of dispossessed, the quick-fix solution is to let them occupy the far northern lands of the Amazon rain forest....Century-old social problems will be resolved not by social justice but by displacement of its population...

...I was filled with intense homesickness, for home and wife and sons, and for my far-off country...

...Paton's first novel, with its simple language and pervasive religious sensibility, had a far greater impact on race relations in the United States...

...and what constitutes the limits and tolerable costs of sudden reversals or abandonments...

...More than that, the Jewish establishment has often denounced critics of Israeli policies as anti-Semites...

...The Yanomamo are an aboriginal people whose way of life, though in harmony with their environment, is out of synch with the development plans of the Brazilian military and the mining interests eager to get at the territory's deposits of gold and diamonds...

...Congress has learned by hard experience that in the area of civil rights, legislators must assure parallel and overlapping remedies against racial discrimination if the laws are to be effective...

...Tikkun is certainly one: Michael Lerner's editorial (March/ April) is a lengthy analysis of the theological, historical, and political arguments against present occupation policies...

...Having heard arguments earlier this year in a case alleging recurrent instances of racial discrimination on the job (Patterson v. McClean Credit Union), the Court suddenly instructed lawyers for both sides to return this fall to argue whether Runyon had been in error twelve years ago when it broadened the rights of individuals under what is known as Section 1981 of the U.S...

...The next issue (May/June) of the same magazine contains a fair and informative survey by Abraham Brumberg of political dissent and assent to the occupation among Israeli political and intellectual leaders...

...In the past, this pattern did not create a major threat because the Brazilian population was relatively small....Nowadays, however, the migration of millions of have-nots to the Amazon rain forest is both a myopic short-term solution for Brazil's social problems and a disaster for the delicate Amazon rain forest environment and its aboriginal population...

...After winning the 1948 elections, the Afrikaner National Party enforced complete separation of the races...

...Proponents argue that this is not only in keeping with the original intent of the statute, but that it is also in concert with present-day civil rights legislation...

...But in 1968, in the landmark case of Jones v. Alfred H. Mayer Co., the Court overturned those precedents and concluded that Section 1981 was also intended to bar all private acts of discrimination...

...to voice grievances...

...Code...

...Nothing of this appears in Cry, the Beloved Country...

...yet in the telling Paton exposes the terrible fear dividing whites from blacks, blacks from whites, in South Africa...

...and over-populated urban areas that have little to offer these erstwhile farmers...

...Paton's pleas for integration and reconciliation proved of little avail in South Africa and his moderate position ultimately excluded him from political life...

...to receive notice before changes in room or roommate...

...The novel is prescient in describing the violence which so many years later has overtaken South Africa...

...they are hunters and gatherers who survive by moving their villages every several years to allow the forest to regenerate itself...

...Only then will the Court continue to enjoy both its considerable authority and public trust...

...Section 1981 of the U.S...

...In spite of its immense green tracts, the area is ecologically fragile and the soil thin...

...His passport was taken from him in 1960 after a trip to Great Britain where he criticized his government's policies...

...COMMONWEAL Demon Runyon Chief Justice William H. Rehnquist has written that the Supreme Court as an institution has steadily grown in authority and public trust because of its overall performance during the two centuries of its existence (The Supreme Court, 1987...

...308-09): "Conscious of the history of Christian anti-Semitism and the church's silence during the Holocaust, many Christians have tended to refrain from criticizing Israel...

...Our visitor understood very well the trade-offs between development, the needs of the Indians, and even the situation of the gold prospectors, many of them refugees from the rural upheavals and urban overcrowding in other parts of Brazil...

...Moment debates "Should American Jewish Organizations Publicly Criticize Israel on Peace Issues...

...Much of this land is Amazon rain forest...

...The journey through the United States, and especially the South, gave Paton a sense of black-white relations in this country which he compares and contrasts to those in South Africa in Towards the Mountain...

...This has rightfully evoked consternation within the Court and mystified attentive and knowledgeable outsiders...

...March 1988) and "Is the Occupation Brutalizing Israel...

...In our view, the "Yes" side of the debate makes the better case...

...By precipitously deciding to call into question a whole range of decisions relating to racial equality, the Supreme Court-which has traditionally had a unique role in assuring the civil rights of our most aggrieved citizens-has, in the words of Justice Stevens, "inflicted a serious and unwise wound upon itself.'' Those words are strikingly reminiscent of Chief Justice Hughes's description of the Court's fateful judgment in the Dred Scott decision...

...Any homes found failing to meet federal standards for three years-one third of all nursing homes, according to a recent study conducted by the General Accounting Office-will have their Medicare/Medicaid payments withheld and they will be subject to fines...

...Some are averse to the punitive damages awarded in cases under Section 1981, while others wish to do away with the application of the statute because it extends to all businesses, even those with fewer than fifteen employees and not covered by other federal legislation...

...It was first enacted as part of the Civil Rights Act of 1866 to insure practical enforcement of the then newly ratified Thirteenth Amendment that ended slavery...

...Justice White and some conservatives have consistently opposed the broad application of Section 1981 to acts of private conduct...

...to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens...

...CARING HOMES Placing a family member in a nursing home is usually a measure of last resort: an aged parent, sibling, aunt, or uncle needs more sustained medical care than family and friends can provide...

...The new law also requires training for nurses' aides...

...Cry, the Beloved Country tells the simple story of the Reverend Stephen Kumalo in search of his son Absalom, who has disappeared in Johannesburg...

...In particular, they point to Congress's override two months ago of President Reagan's veto of civil rights legislation that remedied a 1984 Supreme Court ruling limiting civil rights enforcement...

...He wrote Cry, the Beloved Country while on an official trip to study prisons and reformatories in Europe and the United States...

...The usually hawkish New Republic published the subtly differing reflections of three of its editors, with Leon Wiesel-tier, in particular, voicing the contending moral themes of Jewish history that frame the present tragedy (March 14, 1988...

...And the following year, in Runyon v. McCrary, the Court applied Section 1981 as a remedy to discrimination in contracts between individuals as well...

...The Consolata missionaries who have worked in the area for some forty years have tried to preserve the Yanomamo way of life, while gradually preparing the Indians for the cultural changes to come-the agenda as well of FUNAI (the National Indian Foundation...

...I have only one fear in my heart," says the priest Msimangu, "that one day when they turn to loving they will find we are turned to hating...

...A recent visitor to Commonweal's offices told the story of an equally desperate situation developing on the northwest frontier of Brazil, the Calha Norte...

...Now, however, thanks to the Nursing Home Quality Reform Act, signed in December of 1987 and going into effect over the next two-and-a-half years, fears of mistreatment, lack of privacy, and inadequate care have been addressed and federal standards set down...

...His novel, Cry, the Beloved Country, published in 1947 first revealed to many Americans the human costs of South Africa's policies of racial separation...

...chronic unemployment...

...The few Indians who survive this onslaught will be bereft of their culture and any hope for a more gradual and peaceful transition to "a civilized way of life...

...Immediately after, he returned to his hotel room and wrote the first sentence of the book and within an hour completed its first, short chapter...

...Too often, this painful transition away from a familiar home and neighborhood to a new, institutional environment is exacerbated by a family's worries about the quality of care they can expect...

...The book's publication changed Paton's own life, enabling him to resign his post as principal of a reformatory, to write full-time, and, as he put it, "to do many things that brought in less money, or indeed no money at all...

...The Yanomamo Indians, who inhabit the area where our visitor has worked for over twenty years, do not farm...

...No doubt, that many-faceted history will be the focus in rehearing arguments this fall, much as the Reagan administration has sought to alter the generally held interpretations of the ABM Treaty by reexamining its complex and unwieldy negotiating history...

...Other protections include the patients' rights to choose a personal physician...

...But Albert Vorspan of the Union of American Hebrew Congregations reports on the anguish and soul-searching that criticism of Israel brings to one of its ardent supporters (New York Times Magazine, May 8, 1988...

...ET CETERA THE INDIANS AND THE FOREST Last year in these pages, Arthur Powers wrote of the land grab in Goias in central Brazil (May 8, 1987, pp...

...A combination of underdevelopment, government reforestation projects, and corruption has ended in pushing from subsistence farms thousands of Brazilian peasants who have neither the skills nor the means to survive in the urban areas to which many of them have migrated...

...It states in part that' 'All persons within the jurisdiction of the United States should have the same right...

...LISTENING IN SILENCE Talking about Israel is no easy matter...

...There is a vast and complex legislative history associated with Section 1981-a history which has made its original intent the subject of recurrent disagreement (Harvard Civil Rights/Civil Liberties Law Review, Spring 1980...

...Gregory Baum reminds us in his review of The Yellow Wind (pp...

...None of the litigants, and none of those who had offered briefs in the Patterson case-including the Reagan administration's solicitor general-had questioned the standing of Runyon...

...The debate within the Jewish community has been particularly intense-and instructive: there are voices more candid and critical than any outsider's could be, and as Baum reports many of these voices are eloquent and impressive...

...licensed nurses to be on duty twenty-four hours a day...

...Yet for millions of Americans the power of this simple tale has had an impact difficult to measure but real, that has helped bring us, if not yet to a satisfactory resolution of our race problem, at least to a better place than the poor sad land where ' 'There is a lovely road that runs from Ixopo into the hills...

...Paton writes in his autobiography, Towards the Mountain (Scribners, 1980), of his first encounter with this new policy during a farewell party given in his honor at the reformatory: ' 'I was full of anger, and sick at heart...

...Judicial decisions of the nineteenth and early twentieth centuries concerning Section 1981 applied the statute restrictively, stating that it prohibited involuntary servitude but did not cover merely private acts of racial discrimination...

...Code is the touchstone of the Runyon controversy...

...and a registered nurse for eight hours each day...

...Justice Frankfurter observed that sudden turnarounds by the judiciary are a danger to the republic because they lead people to believe ' 'that law is the expression of chance.'' And Justice Cardozo noted that if every past decision could be reopened in every case, "one could not lay one's own course of bricks on the secure foundation of the courses laid by others...

...This long-standing respect for judicial precedent, stands in marked contrast to the Rehnquist Court's sudden directive (Justice Stevens called it a "spontaneous decision") to rehear Runyon and thus a significant body of the Court's work over the last decade...

...Now that has changed...

...Credit goes to the National Citizens Coalition for Nursing Home Reform-a group of consumer advocates who have worked for a decade with patients and nursing home owners and their staffs...

...We can only hope that the ramifications of the present case are both less revolutionary and less catastrophic...

...Later reenacted as part of the Enforcement Act of 1870, Section 1981 was recodified and given its present form and designation in 1874...

...He could not travel for the next ten years, but through his essays and novels he continued to speak to the rest of the world of the situation in South Africa...

...Widespread abuses-a frequent theme in nursing home stories-have included beatings, unnecessary restraints, and patient neglect...

...The novel ends in reconciliation between Kumalo and Jarvis, the man whose son Absalom has killed...

...But the book did not change the face of apartheid...

...For the aged and ill-mothers and fathers, aunts, uncles, siblings, and friends, many of whom will live out their last days in nursing homes-this new law is good news, long overdue...

...With the Court's abrupt decision last month to call into question its own 7 to 2 decision in the 1972 civil rights case of Runyon v. McCrary, and with it a decade-long series of other decisions which broadly applied civil rights statutes to individuals, that trust has been put to the test...

...288-90...