High Court No Longer Seen as Rights Defender : Activists, Stung by Decisions of Reagan-Shaped Bench, Turn to Congress for Remedial Legislation

Civil rights activists, stung by a series of setbacks in the Supreme Court, say the rulings appear to mark the end of one era of anti-discrimination action and the beginning of another.

For 35 years, from the time the justices unanimously decreed an end to school segregation in 1954 and through the years of the Ronald Reagan Administration, the Supreme Court was counted on to be an active defender of civil rights.

In the 1970s, although dominated by Republican appointees, the court nonetheless gave a broad interpretation to civil rights laws enacted by Congress. And, through most of this decade, the court repeatedly rejected moves by the Reagan Administration’s attorneys to retreat on civil rights in the areas of housing, voting, education and employment.

Protections Undercut

But no more. With Reagan appointees now controlling the court, and issuing rulings that recently have undercut minority protections on several fronts, civil rights advocates say they will look now to Congress to take the lead in civil rights action.

“We can’t rely on the court any more, but . . . we have a strong bipartisan consensus in Congress in support of civil rights. We are confident remedial legislation will be enacted,” said Ralph Neas, executive director of the Leadership Conference on Civil Rights, an umbrella group representing more than a hundred organizations.

Although aggressive support for civil rights has waned in the Supreme Court, the civil rights lobby has shown itself to be more powerful than ever on Capitol Hill. Recently, pro-civil rights forces have managed to win key victories even when matched against both the executive and judicial branches.

Last year, for example, the House and Senate, by nearly 3-1 ratios, overrode President Reagan’s veto and enacted a law applying federal anti-discrimination standards broadly to schools, colleges and other recipients of federal funds.

Reagan Victory Reversed

The legislation overturned a Reagan Administration high court victory, the 1984 Grove City College ruling, that said that government standards were binding only on departments receiving federal aid, not the entire college.

Despite Reagan’s opposition, the pro-civil rights coalition in Congress enacted broader laws attacking discrimination in housing and voting. And, in 1987, the Senate soundly defeated Reagan Supreme Court nominee Robert H. Bork in large part because he was perceived to be a foe of broad civil rights protections.

Sen. Edward M. Kennedy (D-Mass.), a leading sponsor of civil rights legislation, took the Senate floor Thursday to declare that a new Capitol Hill offensive on civil rights will begin soon.

In referring to the recent high court decisions, he said: “Taken separately, each of these recent retreats would be source of genuine concern. Together, they are a serious threat to the 35 years of progress we have achieved toward a better and fairer society. Congress must not let these decisions stand.”

Counteroffensive Planned

In the House, Education and Labor Committee Chairman Augustus F. Hawkins (D-Los Angeles) also pledged to “mobilize a counteroffensive in Congress.”

Congressional aides say they hope to put together one large bill that will reverse the result of several of the high court decisions, which affected affirmative action and the handling of job discrimination complaints.

The liberals acknowledge, however, that race issues are inherently sensitive. Achieving agreement on legislation will be difficult and time-consuming, with success far from certain, they said.

Regardless of what happens in Congress, conservative legal experts say that the court’s change in direction marks a historic, and long-overdue, shift.

“A generation ago, (civil rights lawyers) could go to the court and win what they couldn’t win in Congress. Now, it’s going to go the other way,” said Alan Slobodin, general counsel for the Washington Legal Foundation, a conservative research group.

Bruce Fein, a conservative legal scholar, described the court’s recent decisions as not so much a retreat on civil rights but a return to fair and common-sense readings of the law.

“It seems to me the court is declaring that it is no longer going to play fast and loose with the language of a law so that the civil rights people can always win,” Fein said.

Ruling Limits 1866 Law

He cited as an example Thursday’s ruling on the Civil Rights Act of 1866. As enacted, the law gave blacks the same rights as whites “to make and enforce contracts.” Beginning in 1968, a liberal Supreme Court interpreted that provision as a broad ban on racial discrimination in schools, hotels, amusement parks and other private businesses.

Now, however, the court says the law is quite limited: It forbids a business to deny a job to a person because of race, because that is akin to a refusal to make a contract, but it does not forbid racial discrimination on the job.

This result, civil rights lawyers complain, means that a black employee subjected to racial harassment at work will have no effective remedy in federal law.

But Fein and Slobodin praised the court for adhering to a literal reading of the law.

“I’m sure the civil rights groups will rush to Congress and try to get this changed. They are a formidable political force. That’s probably going to be the scenario for the next couple years,” Slobodin said.

However, lawyers for civil rights groups say that it will not be possible to entirely reverse the court’s rulings.

In January, for example, the high court cast doubt on all local and state programs that give blacks and other minority members an edge in competing for public contracts. On a 5-4 vote, the justices specifically struck down a Richmond, Va., law that reserved 30% of city contracts for businesses owned by blacks or members of other minorities.

Equal Protection for Whites

Such a program violates a white contractor’s right to “equal protection” and is therefore unconstitutional, the court concluded. This ruling, because it is based on the Constitution, cannot be overturned by Congress.

But other recent court decisions on civil rights were interpretations of federal laws, including the Civil Rights Act of 1964, so they can be countered with new laws.

Two weeks ago, the court ruled that, in claiming illegal job bias under the 1964 Civil Rights Act, minority plaintiffs may not rely on statistics showing they were segregated in low-paying jobs but must show that employer policies intentionally discriminated against them.

Last week, the court said that the federal rules of civil procedure permit white employees to challenge court-approved affirmative action plans, which previously had been considered final, and that women adversely affected by a seniority policy may not challenge it after it has been in effect for 300 days.

To counter these interpretations, Congress could rewrite the law to clarify or change how it should be applied.