In an unexpected move that sent a shock wave through the nation’s civil-rights community, the U.S. Supreme Court said last week that it will reconsider a 1976 ruling that allows blacks to sue private schools that deny them admission on the basis of their race.
Legal experts said they were stunned by the Justices’ 5-to-4 decision ordering the parties in a pending job-discrimination suit to submit new briefs addressing the legal underpinnings of its ruling in the education case, Runyon v. McCrary. Neither of the parties to the employment case had requested such a re-evaluation.
In the Runyon case, the Court held 7 to 2 that two Northern Virginia private schools violated black families’ rights under Section 1981 of Title 42 of the U.S. Code by refusing to enroll their children.
The Reconstruction-era law states that all persons have the same right “to make and enforce contracts ... as is enjoyed by white citizens.’' It provides for both compensatory and punitive damages if that right is denied.
Racial Harassment
The pending suit, Patterson v. McLean Credit Union (Case No. 87-107), involves charges by a black employee of a North Carolina credit union that she was subjected to racial harassment while on the job in violation of Section 1981.
Federal district and appellate courts have ruled in the case that a claim of workplace harassment, unlike claims of discriminatory hiring, firing, or promotion, cannot be brought under the civil-rights law.
The Court considered arguments on the harassment issue alone during a Feb. 29 hearing. But when the Patterson case is argued again next fall, the more fundamental question at issue will be whether the Court erred when it ruled in Runyon that Section 1981 applies to private as well as governmental acts of racial discrimination.
If the Court overrules the 12-year-old decision, only private schools that receive federal funds would be barred from discriminating on the basis of race. Civil-rights advocates note, however, that schools that practice discrimination typically refuse government aid.
Discriminatory private schools would continue to be ineligible for federal tax-exempt status under the Court’s 1983 decision in Bob Jones University v. U.S.
Judicial ‘Activism’
The decision to review the Runyon ruling prompted extremely harsh criticism from the four dissenting Justices, who accused the majority of unwarranted judicial “activism.’'
“The Court has inflicted a serious--and unwise--wound upon itself,’' wrote Associate Justice John Paul Stevens for the dissenters.
He said that the order “will, by itself, have a deleterious effect on the faith reposed by racial minorities in the continuing stability of a rule of law that guarantees them the ‘same right’ as ‘white citizens.’ ... [S]ome of the harm that will flow from today’s order may never be completely undone.’'
In a separate opinion also joined by the three other dissenters, Associate Justice Harry A. Blackmun added that he could not understand why the majority would want “to reconsider an interpretation of a civil-rights statute that so clearly reflects our society’s earnest commitment to ending racial discrimination.’'
“I can find no justification for the bare majority’s apparent eagerness to consider rewriting well-established law,’' he said.
In a short unsigned opinion, the majority countered that its action was not driven by “extralegal criteria.’' It also cited similar cases--including the 1985 student-search case, New Jersey v. T.L.O.--in which the Court had ordered new arguments to consider questions that were not posed by the parties to the suits.
Mr. Stevens, Mr. Blackmun, and the two other dissenters--Thurgood Marshall and William J. Brennan Jr.--had all joined in the majority opinion in Runyon.
Two members of the majority--Chief Justice William H. Rehnquist and Associate Justice Byron H. White--were the sole dissenters in that case.
The remaining three members of the majority--Associate Justices Sandra Day O’Connor, Antonin Scalia, and Anthony M. Kennedy--were not on the bench when Runyon was decided.
A lawyer for the NAACP Legal Defense and Educational Fund, which is representing the black employee in the Patterson case, said her organization was deeply troubled by the majority’s order.
“It does not instill a great amount of hope and faith in the system when the Court on its own reaches down to decide an issue that none of the parties have reached,’' said the lawyer, Janell Byrd.
“The Court provides not just legal guidance, but moral guidance as well,’' she continued. “I hope they will not reverse [the Runyon] decision. But if they eliminate a sanction that had once been in place, that says to the public, ‘This is acceptable conduct.’ That’s a bad message.’'
The majority’s action “opens an old wound that we thought was healed,’' added Grover Hankins, national general counsel of the National Association for the Advancement of Colored People.
“Considering the lengths they went to, I guess civil-rights groups should take this as a warning signal of things to come from the Court,’' he said.
“We hope this isn’t the beginning of a movement to reopen significant decisions and roll back on civil-rights gains that we’ve made even in the recent past.’'
