Some of the Supreme Court’s most conservative members seemed to be having second thoughts Wednesday about whether they should overturn key civil rights rulings of the 1960s and 1970s that outlawed racial discrimination in private schools, housing and employment.
In April, the five conservatives shocked civil rights advocates by announcing that they would “reconsider” past rulings that interpret post-Civil War laws to forbid discrimination in the private sector, as well as by government.
But Justice Antonin Scalia, one of the five, told attorneys Wednesday in a hearing on a civil rights case that he is not sure the high court should take such an extraordinary step.
“Let’s concede it (Runyon vs. McCrary, a 1976 decision outlawing discrimination in private schools) was wrong. So what? Why should we go back and change it?” Scalia said, noting that the Supreme Court has made mistaken interpretations in the past but let them stand if Congress concurs.
Intent of Congress
New York attorney Roger Kaplan, representing businesses that would like the court to narrow the scope of civil rights law, replied that the earlier decisions did not correctly reflect what Congress intended in 1866 when it said that blacks should have the same rights as whites “to make and enforce contracts.”
“If that’s all you have, Mr. Kaplan, I’m afraid that’s nothing,” said Scalia.
Comments from conservative Justices Sandra Day O’Connor and Anthony M. Kennedy indicated that they also are reluctant to overturn the civil rights rulings, although still seeking a way to limit their effect in the private sector. Two-thirds of the members of the U.S. Senate and 44 state attorneys general have filed briefs urging the court to leave the civil rights precedent as it is.
The justices’ comments came during an hour-long argument on a case that seeks to further expand the civil rights protections that were interpreted broadly by the court in 1968 and 1976 rulings. In its 1968 ruling, the court said that the 1866 law guaranteeing blacks equal rights of contract should bar housing discrimination. The 1976 ruling interpreted it to guarantee equal rights of enrollment at private schools and since then lower courts have applied it to employment discrimination and other parts of the private sector.
Woman Seeks Damages
In a 1984 lawsuit now before the court, Brenda Patterson, a black woman from North Carolina, maintained that the law also should bar racial harassment on the job, even if such treatment did not block hiring or cause firing or demotion. She sought damages against her employer, whom she said abused her because of her race.
Julius LeVonne Chambers, counsel of the NAACP Legal Defense and Education Fund, urged the justices to rule in her behalf and also implored them not to backtrack on the earlier implied protections.
Those decisions extending civil rights protection to areas not addressed specifically in the 1866 law played a vital role in “ridding this country of discriminatory practices,” Chambers said.
But Kaplan argued that there is “an inevitable push” to broaden civil rights laws and that the result is that businesses are increasingly subjected to damage suits from employees.
Experts Perceive Trend
Legal experts believe that this case (Patterson vs. McLean Credit Union, 87-107) could herald the beginning of a new Reagan-dominated high court that reevaluates civil rights law or that it could result in a highly technical ruling that simply puts limits on the Civil Rights Act of 1866.
Earlier, a federal judge and an appeals court said that racial harassment is not covered by the law and the NAACP Defense Fund appealed to the Supreme Court. Before deciding on the racial harassment issue, the five conservative justices said that they wanted to reconsider the earlier rulings that first applied the law to non-governmental situations.