Civil Rights and the Reagan Court

...In the original debate over the Fourteenth Amendment what comes through is a resistance to any kind of racial mixing and an acceptance of segregation...

...Original Intent These decisions follow from a heads-I-win, tails-you-lose approach to legislative and constitutional intent...

...Not only has their litigation position been immensely strengthened by Ward's Cove, but even if they decide to settle, they will not gain their other goal, which is to be protected against suits by nonminority employees...

...The facts in the case were these: In 1983, the Richmond City Council, seeing that blacks had almost never gotten any city contracts, voted to require prime contractors on city contracts to set aside at least 30 percent of their contract dollar amount for minority business enterprises...

...The Court's patience was much shorter, however, when it was women or minorities who delayed in suing...

...There he voted to reconsider Runyon v. McCrary (1976), a 7-2 decision that, following a decision in a housing case eight years earlier, ruled that the 1866 Civil Rights Act prohibited discrimination in all private contracts...

...She and the Reagan conservatives have continually proclaimed their allegiance to judicial restraint, repeatedly attacking liberals for not showing proper deference to the popularly elected branches of government...

...but rather on the basis of which meaning is . . . most in accord with context and ordinary usage...

...Congressional legislative history is usually available in the form of committee reports and debates, often deliberately created in order to help courts interpret a statute...

...Many employers, universities, and state governments had become accustomed to it...

...Writing for the majority, Justice O'Connor declared that as a matter of fundamental constitutional law, official action for minorities to help make up for some of the disadvantages resulting from centuries of oppression would be viewed by the Court with the same hostile skepticism—in constitutional terms "strict scrutiny" —as prejudiced and racist actions against minorities...

...The Reagan Court did not stop here, however...

...Many employers, facing a long, drawn-out suit, choose to settle and accept a court-approved consent order, often involving the establishment of an affirmative action plan...

...the following year did, however, and in both style and substance the Court's decision revealed such a cold indifference to the continuing plight of minorities that Justice O'Connor, who wrote the Court's opinion, felt impelled to protest that the majority did not think that "government bodies need no longer preoccupy themselves with rectifying racial injustice...

...Reagan, Ed Meese, and Bradford Reynolds changed all that, despite the fact that in the 1980s the strong initial complaints against affirmative action, especially by Jewish groups fearing the revival of the kinds of quotas once used to exclude Jews from higher education, quieted down...

...Such qualifications as high school diplomas for janitors and height requirements for police, which had excluded many minorities and women, often turned out to be unnecessary...

...Nothing whatever in the legislative history of either the Fourteenth Amendment or the Civil Rights Acts remotely suggests that the States 80 • DISSENT Culture In an Age of Money are foreclosed from furthering the fundamental purposes of equal opportunity to which the Amendment and those Acts are addressed...

...Many Supreme Court decisions and over one hundred lower court cases had relied on these decisions, and they were an important part of the civil rights structure...

...Also, we are a nation with a racist and sexist history, and the history of the Fourteenth Amendment prohibiting discrimination by the states is clouded by ideas long since discredited...

...The 5-4 decision to reconsider that decision in April 1988, after Patterson had already been argued, sent shock waves through the civil rights community...

...Because he was the decisive swing vote—as in so many cases during his time on the Court—Justice Lewis F. Powell, the conservative Virginia Democrat appointed by Nixon, would set the governing rules for legally acceptable affirmative action in Bakke and a series of sharply divided Supreme Court decisions over the next ten years...

...As a result, employers considering settlement will now have another strong reason not to...

...Instead, for O'Connor, the plan adopted by a 5-4 black majority of the Richmond City Council was an exercise of blatantly racial politics by blacks that justified especially close scrutiny by the courts...

...Despite the Robert Bork defeat, when Anthony Kennedy took his seat on the High Court in February 1989, it finally became the Reagan court...

...he transformed the federal judiciary, once the foremost champion of individual rights, into a threat to those laws...

...A full majority was available the following year, however, in United Steelworkers v. Weber (1979), when a 5-2 vote of the Court upheld a private employer's affirmative action plan against a challenge under Title VII of the Civil Rights Act of 1964, which bans discrimination in employment...

...Even the foremost advocate of "original intent," Robert Bork, once conceded, "History . . . tells us much too little about the specific intentions of the men who framed, adopted, and ratified the great clauses...

...By 1981 affirmative action seemed solidly established...

...Both Scalia and Kennedy condemned all race-preferential programs, insisting instead that the only acceptable approach is one that limits preferences to identifiable victims of specific discrimination...

...Just five years after the Fourteenth Amendment was ratified, Justice Bradley observed, "The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother...

...The decision, which overturned eighteen years of law, is contrary to normal notions of who has to prove what in a suit...

...Reagan not only succeeded in reducing the protection of specific laws...

...Conservatives have turned the matter upside down...

...What they point up is that the only kinds of racial injustices the Reagan court now finds worth rectifying are instances of demonstrably intentional prejudice aimed at individuals...

...Kennedy wrote their opinion...

...Lawyers are turning down employment discrimination cases because they are too costly to litigate and almost impossible to win...

...q 84 • DISSENT Lighting candles at the steps of St...

...82 • DISSENT Muni in an Age of Money Congress and others in fact consider committee reports to be the official legislative commentary on a law, and the reports are prepared and approved with that in mind...

...Section 1 of the Fourteenth Amendment stemmed from a distrust of state legislative enactments based on race," she wrote in the decision that led a bitter Justice Thurgood Marshall to protest that this "turns the amendments on their heads...

...Wenceslas in Prague as hundreds of thousands of Czechoslovakians take to the streets...

...Less than three months after these decisions, the Wall Street Journal reported that at least thirteen racial harassment cases brought under the 1866 Civil Rights Act had been dismissed since Patterson...

...Too late," said the Court...

...In response, an avalanche of briefs supporting the Runyon decision, including a bipartisan brief from sixty-six senators and 118 members of Congress, descended on the Court, and the conservatives quickly backed off...

...Asking what the legislators intended . .. is quite the wrong question," he said some years ago...

...That is better than nothing, but given the persistence of deeply entrenched racism and sexism, it is grossly inadequate...

...According to her, the Fourteenth Amendment was adopted in order to prevent the states not only from doing bad things to blacks but from doing good things for them that might adversely affect whites...

...But the virtues of localism and of judicial restraint were conveniently forgotten in Croson when it came to protecting white contractors...

...Where individual rights based on constitutional provisions are to be considered, Meese went on to insist, the framers' original intention was the sole legitimate basis for constitutional analysis...

...The women should have sued when the system was first instituted, even though they were not affected by it until three years later...

...If it cannot, what is certain, is that the future for minorities, women, and all who have been hurt by discrimination will be bleak—even by 1980s standards...

...The first ominous sign appeared two months later when Kennedy joined the four other conservatives in ordering a reconsideration of an important 1976 civil rights decision...

...Most of its efforts failed...

...Blacks are certainly not as helpless today as the ex-slaves were a century ago, and national attitudes are also very different...

...Technologies, Inc., decided a week after Martin v. Wilks, the Court threw out the case of several women who had tried to challenge a seniority system for being deliberately discriminatory...

...A hostile federal judiciary led by the Supreme Court can only be counteracted by state and national legislation if we are to avoid a quick end to the Second Reconstruction...

...From its first days in office, the Reagan administration targeted affirmative action...

...Since coming onto the Court, O'Connor has been a vociferous defender of localism and states rights...

...Dismissed by the majority as irrelevant were what Kennedy conceded were strong indications by Congress that the states were indeed to be held liable in such damage cases...

...When Congress enacted the EHA in 1975, Kennedy said, it did not comply with a Supreme Court ruling that, if Congress wants to subject the state to damage suits, it must do so not only clearly (which it had) but explicitly in the text of the statute...

...One of the many benefits of this decision was that it forced employers to examine and discard many tests and requirements that they had long used unthinkingly...

...Waivers were available if the goal could not be met...

...That is the law of the Creator...

...He then weakened the Act significantly by reading it as not protecting against racial harassment on the job or job promotion—unless the promotion involved "an opportunity for a new and distinct relationship between the employer and employee...

...It is extremely difficult to establish that an employment practice is not justified, for the employer has most of the evidence about why he or she chose a job selection procedure...

...In Patterson, Kennedy insisted that "neither our words nor our decisions should be interpreted as signalling one inch of retreat from Congress's policy to forbid discrimination in the private, as well as the public, sphere...

...If anything, the attitude underlying Plessy v. Ferguson (1896), where the Supreme Court gave its stamp of approval to segregation is closer to the "original intent" of the framers of the Fourteenth Amendment in the 1860s than was Brown v. Board of Education (1954...

...Patterson itself dealt with whether the 1866 act banned racial harassment on the job, and nobody in the case even questioned the correctness of Runyon...

...But the consequences of racism remain, and even without a Bensonhurst or a Howard Beach, America cannot afford to abandon the Second Reconstruction that the Supreme Court initiated in 1954 with its Brown decision...

...As the late legal historian Alexander Bickel concluded, "[T]he Amendment as originally understood, was meant to apply neither to jury service nor suffrage, nor antimiscegenation statutes, nor segregation...

...She then set down conditions for a constitutionally acceptable program so stringent that few such plans will ever pass legal muster...

...Patterson v. McClean Credit Union is the case in which Justice Kennedy first showed where he stood on civil rights issues...

...Hearings are held to give interested parties a chance to be heard on the fairness of the deal, and if it is approved, this has usually meant that the matter is closed...

...That was just a signal, however, for the reconsideration order itself did not actually decide anything...

...The following year, in Fullilove v. Klutznick, six justices upheld a federal government plan to require states to set aside 10 percent of their contracts for minority business on construction financed by the federal government...

...Perhaps not...

...In a 6-3 decision the Court struck down the Richmond plan...

...In Ward's Cove Packing Co...

...v. Atonio (1989), the Reagan Court changed this balance by requiring employees to prove that their employer is not justified in using an employment practice that results in disproportionately few minorities being hired...

...There, the Court avoided the issue by dismissing the case on procedural grounds...

...The plan, which was modeled on the federal plan approved in Fullilove, was designed to last for five years, but after the plan had been in operation a few months, a white prime contractor, who had lost a contract for plumbing fixtures in a Richmond city jail, challenged the city...

...Not surprisingly, they did not choose to file a difficult and expensive lawsuit against something that had not yet hurt them...

...In Lorance v. A.T.&T...

...It is hard for an employee to get access to that information, and if the plaintiff is an applicant who was turned down for a job, he or she is even less likely to know about the business in question...

...There was no majority decision, as the Court splintered three ways in a 4-4-1 division...

...She did so by resorting to some constitutional history to distinguish between federal and state power...

...In order to forestall suits or settle them, employers adopted affirmative action on their own...

...It was continually rebuffed by Congress, and, more often than not, the Supreme Court upheld affirmative action plans except when white employees were laid off in favor of minority workers with less seniority...

...The catch is that this requirement was not imposed by the Court until 1985 and, as the four dissenters complained, "could have [been] anticipated only with the aid of a particularly effective crystal ball...

...Those who could have come into the suit and didn't choose to can rarely mount an effective challenge later...

...In Croson, O'Connor found it necessary to protest that the majority did not "view racial discrimination as largely a phenomenon of the past...

...Reagan and Meese had a complete triumph in one respect, however, They reshaped the federal judiciary in general and the Supreme Court in particular...

...As a Bank of America executive observed, "We want to ensure a work force that reflects the diversity of the markets that we serve...

...At the Kaiser plant in Gramercy, Louisiana, the site of the Weber case, the number of minority craft workers jumped from five to fifty-six (today they are almost 20 percent of the total...

...Legislative history and other such sources of congressional intent should be ignored...

...The result is a situation reminiscent of a century ago when, in an 1883 decision that drew an angry dissent from the first Justice John Harlan, the Supreme Court held that "there must be some stage in the progress of [the former slave's] elevation when he . . . ceases to be the special favorite of the laws...

...The case of Richmond v. J. Croson and Co...

...The same day that the Court issued Ward's Cove, in Martin v. Wilks it hit at challenges to employment discrimination from the other end...

...Rough as it was, the Court's assault on affirmative action in Croson did not satisfy the two newest Reagan appointees...

...difficult to decide to settle a case...

...There the five conservatives, led by Rehnquist, ruled that white firefighters who could have come into the Birmingham suit when it was being litigated but chose not to could challenge it as much as ten years after the WINTER • 1990 • 81 Culture in an Age of Money plan went into effect, and even later...

...The decision overrode decisions of almost all the federal appellate courts going back to 1980...

...But when in 1982 the new seniority system began to result in their demotion, they promptly sued...

...The same Congress that adopted the Amendment appropriated money for segregated schools in the District of Columbia...

...To allow the suit, said Justice Scalia, "would disrupt . . . valid reliance interests," something he and the majority were quite willing to tolerate in the Martin case, where white males delayed nearly ten years before suing...

...The key to this transformation was the Reagan appointments to the Supreme Court...

...First, Kennedy grudgingly reaffirmed Runyon, but just on the basis of precedent, without commenting on its correctness...

...They advocate original intent for constitutional questions, where it really doesn't have much of a place, but urge the opposite on statutory questions...

...To all this, the Reagan court seems oblivious...

...Scalia has, in fact, frequently shown his scorn for the legislative branches, Congress, and the state legislatures, and his approach has given the Reagan justices a free hand in developing their notions of "context and ordinary usage...

...Some even saw affirmative action as a positive benefit...

...Victims' Rights But proving you are a victim of discrimination is no easy task before the Reagan court...

...In her opinion O'Connor also had to explain away the Fullilove decision, which was the model for the Richmond plan...

...Kennedy also wrote for the Court in the Dellmuth case...

...Donna BinderhmPAcT VISUALS 86 • DISSENT...

...Shortly after Edwin Meese became attorney general in 1985, he told the American Bar Association that the "original meaning of constitutional provisions and statutes [is] the only reliable guide for judgment" by judges...

...Hundreds of thousands WINTER • 1990 • 79 Culture In an Age of Money of plans in various industries were established and minorities and women were able to make sizeable gains...

...But for the black plaintiffs in those cases, such words are hardly consoling...

...Or so it was before the Court's decision in Martin v. Wilks...

...far more difficult to settle a case...

...They anticipated that such plans would not only take care of the discrimination charge by minorities and women but, if court-approved, would also protect them against so-called "reverse discrimination" suits by white male workers...

...But as recent history shows, getting such legislation passed, especially by Congress, is difficult and time consuming...

...There has usually been no dispute over the proposition that, as Chief Judge Patricia Wald of the Court of Appeals in Washington, D.C., wrote recently, it is the business of the judge to "try and enforce .. . [statutes] as Congress meant them to be enforced...

...Affirmative action has troubled the Court since it first faced the issue in 1974 in a case involving preferential admissions to a state law school...

...Justice Scalia, the most aggressive and imaginative of the new conservative justices, has argued in speeches and opinions that the search for the legislative intent of a statute is unwise and unwarranted...

...Along with Nixon appointee William H. Rehnquist, whom Reagan elevated to chief justice, and conservative Kennedy appointee Byron White, the Reagan justices—Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy—have consistently voted together to strike at civil rights laws adopted for minorities, women, and the disabled...

...Supreme Court rulings in other civil rights settings, particularly those making it easier for minorities and women to win job discrimination suits, added to the force of Weber...

...Four years later, it could duck the problem no longer, and in the landmark Regents of the University of California v. Bakke (1978), it gave a constitutional green light to race-preferential plans in admittance to state-run higher education so long as the plans did not involve fixed quotas...

...The Croson decision also exposed the meretriciousness of one of the Reagan justices' most frequently proclaimed loyalties...

...No precedent or other authority was invoked by Kennedy, and the legislative history cited by Justice Brennan showing that Congress intended an expansive reading to "make and enforce" was simply ignored...

...For his statutory interpretations, Kennedy relied on his own reading of the phrase "make and enforce" a contract and his conception of how the 1866 Civil Rights Act meshed with the 1964 Civil Rights Act despite the hundred-year difference in their enactment dates...

...According to lawyers for the NAACP Legal Defense and Education Fund, Inc., the Court's decisions have made it "difficult to bring a case...

...All the justices who voted to uphold the plan, including Chief Justice Warren Burger as well as Justices Powell and White, made a point of commenting on the sad history of racial discrimination in the construction industry...

...The difficulty and expense of defending these cases after Griggs led many employers to settle or to adopt affirmative action plans voluntarily...

...Professing devotion to "color blindness" — a devotion that developed only when the possibility arose that whites might be affected by color consciousness—the administration launched a full-scale attack against civil rights statutes...

...What this selective approach to history means in practice may be seen with particular vividness in two cases decided on the same day in the closing weeks of the 1988-89 Supreme Court term: Patterson v. McClean Credit Union, which dealt with the 1866 Civil Rights Act, and Dellmuth v. Muth, which ruled out suits against states in federal court under the Education of the Handicapped Act...

...Original intent" is, however, a particularly unreliable guide for determining the scope of constitutional rights about discrimination and equality under the Civil War Amendments...

...There, Chief Justice Warren Burger, speaking for a unanimous Court, ruled that once employees show that an employer's ostensibly neutral employment practices result in a grossly disproportionate disparity between the minorities in the workforce and those in the pool from which that force is drawn, the employees win unless the employer can show that the practices are justified by business necessity...

...In that decision, he and the conservative majority refused to allow a handicapped student to recover damages from the State of Pennsylvania for violating the Education of the Handicapped Act (EHA...

...In the past, discrimination victims could rely on the Supreme Court's 1971 ruling in Griggs v. Duke Power...

...With statutory rights, however, the matter is quite different...

...And so far as the constitutional rights to equal treatment of women are concerned, a good indication of the mid-nineteenth-century attitude is Justice Joseph Bradley's comment in an 1873 decision upholding Illinois's authority to deny women the right to practice la'w...

...Suddenly the decision of a local city council no longer mattered...

...That ruling led to decades of discrimination and segregation, as Congress, the High Court, and the nation turned their backs on the First Reconstruction...

...Whether enough political muscle can be mustered is uncertain...

...When the system was first adopted in 1979, the women were not harmed by it...

...Affirmative Action The Court's approach to affirmative action is the best illustration of this change...

...WINTER • 1990 • 83 Mine In an Aga of Money Back to the Future The consequences of this onslaught are already apparent...

...According to Scalia, a statute should be read "not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress...