Split Court Reopens ’76 Rights Case : Kennedy Casts Key Vote in Surprise Test of Private Bias

The Supreme Court, signaling that a new conservative majority may have taken control, announced Monday that it would reconsider whether an 1866 civil rights law prohibits private racial discrimination.

In a highly unusual step, the court voted 5 to 4 to reopen a 1976 ruling that outlawed racist white academies. Casting the key vote was Anthony M. Kennedy, the newest justice, who joined the court in February.

The surprise action angered the court’s liberals and left civil rights advocates fearing a sweeping attack on civil rights rulings from the last three decades. Legal experts said Monday’s announcement suggested a willingness by a five-member conservative majority to reopen and possibly roll back well-established court precedents.

Blackmun Dissents

“I am at a loss to understand the motivation of five members of this court to reconsider an interpretation of a civil rights statute that so clearly reflects our society’s earnest commitment to ending racial discrimination and in which Congress has so evidently acquiesced,” wrote Justice Harry A. Blackmun.

“I can find no justification for the bare majority’s apparent eagerness to consider rewriting well-established law,” Blackmun said.

Arthur Spitzer, legal director of the American Civil Liberties Union in Washington, said: “Basic civil rights decisions now may be considered open for attack.” Because past rulings upholding affirmative action were often decided by 5-4 votes, he said, “the whole affirmative action area” may be reconsidered.

Attack on Bork

It was just this fear of an activist conservative court that prompted civil rights groups to undertake a successful attack against Senate confirmation of Robert H. Bork, President Reagan’s first choice to fill the seat vacated last year by retiring Justice Lewis F. Powell Jr.

Kennedy, while a conservative, was believed to share Powell’s reluctance to overturn settled legal doctrines, and he gained easy Senate confirmation.

“This was an un-Powell-like thing to do,” University of Virginia law professor A. E. Dick Howard said of Kennedy’s vote in Monday’s civil rights case. “This suggests he does not feel as bound by precedent as Powell. If that proves so, he will be a useful ally for the conservative wing of the court.”

Kennedy was joined by Chief Justice William H. Rehnquist and Justice Byron R. White, both of whom dissented from the 1976 ruling, and Justices Sandra Day O’Connor and Antonin Scalia, Reagan’s other two appointees to the court.

At immediate issue is a 1976 interpretation of the 1866 Civil Rights Act, which gave blacks equal rights to whites in the ability “to make and enforce contracts.” In the 1976 ruling, the high court by a 7-2 majority said it was now “well-established” that the 18909516908by whites against blacks. Therefore, it held, white-run private schools that refused enrollment to blacks were illegal under the law.

On Feb. 29, the court heard arguments in the case of Brenda Patterson, a black woman from North Carolina who charged that she had been harassed at her bank job and told by her supervisor that blacks were “slower by nature” than white workers.

She could not fall back on Title VII of the 1964 Civil Rights Act, which bans discrimination in employment, because she was not fired. Moreover, Title VII suits are limited to winning back pay, not additional damages because of discrimination.

Asks Extension

Joined by the NAACP Legal Defense Fund, Patterson contended that the 1866 law should be extended to allow her to sue her supervisor for “racial harassment.”

Instead of deciding that question, the high court issued a three-page order Monday saying that it wanted to rehear Patterson’s case in the fall and focus on the question of “whether or not the interpretation of (the 1866 law) adopted by this court in Runyon vs. McCrary (the 1976 case) should be reconsidered.”

Enhancing the significance of the court’s decision to reconsider that decision, according to civil rights lawyers, is the important role the 1976 ruling played in plugging a hole in civil rights law.

The Constitution’s 14th Amendment prohibits discrimination by states and other government agencies, and Title VII of the 1964 Civil Rights Act bans discrimination in employment. But only the 1866 law, as interpreted by the high court, gave blacks and other minorities the legal authority to attack other forms of private discrimination.

Accepted by Congress

University of Chicago law professor Philip B. Kurland said he believed the post-Civil War Congress had not intended that the law be applied to private discrimination. But Congress has since accepted the court’s interpretation, he said.

Consequently, Kurland said, Monday’s court order “raises a big question mark. If this were really a conservative court, they should have rested” on the doctrine that the law should stay as it is.

The five justices in Monday’s majority said their move to reconsider its past ruling was not “a ‘first’ in the history of the court” and should not be criticized simply because the 1976 decision “benefited civil rights plaintiffs.”

Yet the other four justices were blistering in their dissent.

‘Enduring Impact’

Justice John Paul Stevens said the order would “have a detrimental and enduring impact on the public’s perception of the court” because the majority chose to raise an issue that was not part of the case at hand. “The court has inflicted a serious--and unwise--wound upon itself today.”

Justices William J. Brennan Jr. and Thurgood Marshall joined both Blackmun’s and Stevens’ dissents.

Conservative legal scholar Bruce Fein welcomed the move and said it “represents a sea change in attitude” on the court. “It sends a signal to the country that affirmative action and some of the other civil rights laws have gone too far,” said Fein, a former Reagan Administration Justice Department official.

The prevailing view of the 1866 civil rights law must be rolled back, Fein said, because it would allow “a little old lady running a rooming house to be sued because she refused to rent a room to a black person.”

Strong State Laws

Other attorneys noted that many states, including California, have strong civil rights laws that outlaw the same kinds of discrimination covered by the 1866 federal law. California’s Unruh Act forbids discrimination based on race, sex, religion or national origin in “all business establishments of every kind whatsoever.”

Even if the high court’s final decision next year in the case of Patterson vs. McLean Credit Union, 87-107, were to sharply cut back federal civil rights laws, the Unruh Act would be a powerful substitute in California.

“We will still have a vibrant law and a strong remedy for discrimination,” said Andrea Ordin, California’s chief assistant attorney general.