Justices may limit remedies on bias Affirmative action is in peril, say critics as court ends recess

October 06, 1997|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court, after a streak of boldness last term that wiped out five federal laws, is back in town and ready to consider more strong action -- perhaps to strike a crushing blow against preferences in jobs and education based on race or sex.

A month after colleges in California and Texas opened with diminished ranks of minorities among their freshmen, the vivid result of bans on affirmative action in those states, the court begins a new term today with preferences very much in dispute.

In the most closely watched case this term, the court will rule on a case in which a white teacher in Piscataway, N.J., was laid off to save the job of a black colleague of equal seniority and to promote racial diversity among the faculty.

And the court will decide whether to review the constitutionality of California's Proposition 209, a sweeping ban on preferences for women and minorities in state jobs, education and contracting. If the court chooses to leave Proposition 209 intact, it would embolden efforts being readied in 26 other states or cities to adopt similar bans on affirmative action.

After a dozen years in which a court majority has grown more skeptical about the use of race as a decisive factor in jobs and benefit programs, civil rights groups are deeply concerned over what may happen this term.

"If the court chooses to ride the popular wave of assault on affirmative action," said James E. Ferguson II of Charlotte, N.C., a lawyer with the American Civil Liberties Union, "the court's retreat on civil rights will be virtually complete."

In that event, Ferguson added, "We can look forward to our workplaces, public schools, universities and neighborhoods looking more and more like the entering classes" at California and Texas colleges.

At the University of California Law School at Berkeley, only one black student enrolled this year, compared with 20 last year. At the University of Texas, there are 150 black freshmen, half last year's number.

Foes of affirmative action, meanwhile, are optimistic that the court will come down hard against preferences.

Theodore B. Olson, a Washington lawyer who played a key role in the constitutional assault on preferences in Texas, suggested that a five-justice majority firmly believes that "racial distinctions ultimately are destructive," and is ready to strike at them more firmly this term than in recent years.

Olson speculated that the court stepped into the Piscataway case not to deal narrowly with the dispute over a single teacher's job, but rather to illustrate the majority's interest in defining when government and business can bestow benefits or jobs based on race.

The court, Olson said, "is concerned about the Sharon Taxmans and Cheryl Hopwoods of this world." Sharon Taxman is the white teacher who was laid off in Piscataway to save the job of a black teacher. Cheryl Hopwood is a white law-school applicant who won a case against racial preferences for minorities at the University of Texas. Hopwood's victory was left intact by the Supreme Court last year.

In Taxman's and Hopwood's cases, federal appeals courts interpreted a string of recent Supreme Court rulings to mean that race can never be used solely to promote racial diversity.

Undercuts Bakke

Race, those courts have ruled, can be a factor in awarding jobs and benefits only when preferences are used in a narrow way to remedy specific racial bias.

Those rulings appear to undercut the court's famous 1978 ruling in the Bakke case. The Bakke ruling said racial preferences could be used to promote racial "diversity" in public programs, such as college admissions, although it barred the use of strict quotas.

Olson, asked his view of the fate of the Bakke precedent in the current Supreme Court, replied simply: "I believe it is dead."

The arguments being made to the court now about affirmative action are not much different from those the court considered when it ruled in the Bakke case 19 years ago, according to Kathy Rodgers, executive director of the NOW Legal Defense Fund, a women's rights group.

But, Rodgers added, the court has a more conservative membership now, and "there has been a big change in the political climate, with angry white men" protesting more vigorously the loss of some of their positions to minorities and women.

Walter E. Dellinger, a Duke University law professor who served as U.S. solicitor general earlier this year, tried unsuccessfully to persuade the court not to review the Piscataway case.

Dellinger said that a Supreme Court ruling against affirmative action in the Piscataway case that is as broad as the appeals court ruling "would be the greatest setback to civil rights in 100 years."

The court's approach to the new affirmative action cases is likely to be shaped by the five justices who have united repeatedly against race-based policies: Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

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