It’s Up to Congress Now

The Supreme Court has handed Congress its civil rights agenda for the 1990s. In three out of four decisions just handed down, the court weakened the rights of minorities and women. It is now up to Congress to reaffirm the nation’s commitment to stamp out discrimination based on race or sex.

In the 1960s and 1970s Congress and the federal courts moved largely in the same direction on discrimination cases. Congress was disposed to act against bias in elections, employment, education and the economy, and the courts did not oppose those actions. Judges and justices seemed to understand the spirit and intent of the legislation. That has now changed.

First, in Wards Cove vs. Atonio, the Supreme Court reversed a unanimous ruling that had allowed aggrieved employees to sue when statistics indicated a pattern of discrimination, even if an individual could not point to specific signs of prejudice.

This week the court said employees--usually white males--who felt their rights had been limited by affirmative action court settlements in favor of women or minorities could sue to throw out those agreements. That decision, Martin vs. Wilks, threatens to invalidate dozens of settlements involving police, firefighters and other public employees. California was among 32 states that had asked the court not to tamper with the body of law as it stood. Los Angeles is one of the cities with agreements that could be affected.

Finally, in Patterson vs. McLean Credit Union, the court held that an 1866 civil rights law did not cover racial harassment. The only bright spot in the picture is the court’s unanimous decision in the same case not to overturn Runyon vs. McCrary, a decision that permits lawsuits against private individuals who discriminate against minorities.

At a minimum, Congress should sweep aside all three 5-4 decisions. It could, for example, specifically address use of statistics to determine patterns of job discrimination. It could set limits on intervention in affirmative action agreements. And it could attempt to define racial harassment so it too is covered by civil rights laws, as clearly it should be. Congress may see a need to act more broadly as well. The civil rights community had been reluctant to open Title VII of the 1964 Civil Rights Act to any restructuring, fearing that its manifold protections might be weakened. As the Supreme Court now has done just that, according to one attorney, “Everything is on the table.”

Rewriting the law to accommodate both women and minorities as well as white men who inevitably will feel that they have lost while others have gained will not be easy. But Congress has no choice but to find the words to express its overarching concern that civil rights laws be interpreted to take the side of those who are trying to eradicate race and sex discrimination.

The record of the past few years says that Congress is up to the task. Through the Reagan years, the lawmakers repeatedly reinforced voting rights, fair housing laws and affirmative action requirements for federal contractors. It rejected key Reagan appointees like William Bradford Reynolds of the Justice Department because they opposed civil rights protections. Congress also overturned the Supreme Court Grove City decision that weakened sanctions against discrimination on campuses that receive federal money. Congress acted as it did not only to provide protections guaranteed by the Constitution but also because growing numbers of voters are minorities and because women remain vocal about their rights.

During the debate, Congress must use the opportunity to remind Americans of the importance of civil rights laws, especially Americans too young to remember the civil rights and women’s movements of the 1960s and early 1970s.

The United States has not yet achieved either a color-blind society or one free of gender bias. Reaching that goal requires the support of the courts enforcing the law as Congress intended it be interpreted. Congress must now spell out its intent to shield all citizens from bias.