High Court Reviews Major 1976 Rights Ruling

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Washington--A lawyer for a black credit-union employee told the U.S. Supreme Court last week that its 1976 decision that a Reconstruction-era law bars private schools from denying admission to minorities has become too widely accepted to be overturned.

According to the lawyer, Julius LeVonne Chambers of the naacp Legal Defense and Educational Fund Inc., the Congress and the public "accepts and wants to perpetuate" the Court's ruling 12 years ago in Runyon v. McCrary that Section 1981 of Title 42 of the U.S. Code bars private as well as governmental acts of discrimination.

Even if the Justices now believe that their ruling was wrong, he added, the legal doctrine that precedents should be abandoned only for good cause has "foreclosed" the option of overturning it.

A lawyer for the credit union countered, however, that the federal law was never intended to extend to private acts of discrimination. It is "not appropriate" for the Court, he said, to "step in and fill in those gaps" that the Congress has chosen not to fill.

The forthcoming decision in the case argued last week, Patterson v. McLean Credit Union (Case No. 87-107), could signal a new direction by the Court in the area of civil rights.

Originally, the Patterson case questioned only whether Section 1981 protected minorities against racial harassment on the job. The 1866 law states that all persons have the same right "to make and enforce contracts ... as is enjoyed by white citizens."

After the case was argued for the first time last spring, the Justices voted 5 to 4 to return it to their dock4et for a second round of arguments on the more fundamental question of whether they erred when they ruled in Runyon that the Congress intended the law to apply to private schools and other nongovernmental entities as well as to states.

Because neither side in the case had disputed the Runyon ruling, many legal observers interpreted the move as a signal from the Court's conservative bloc that it was prepared to reconsider a host of liberal decisions issued during the tenures of Chief Justices Earl Warren and Warren E. Burger.

During last week's arguments, Mr. Chambers insisted that the legislative history of Section 1981 "shows that Runyon was correctly decided."

"Congress saw free blacks being harassed in the workplace," he said. "This sort of case is typical of what Congress wanted the law to reach."

That assertion prompted Associate Justice Antonin Scalia to ask Mr. Chambers whether he knew when the first Section 1981 case alleging an act of private discrimination was filed.

"Isn't that important?" the Justice asked. If discrimination in private employment "was as big a problem as you say it was," he said, ''wouldn't there have been a flood of suits almost immediately?"

Mr. Chambers responded that there were many reasons why blacks may have been reluctant to assert their rights under the law, citing difficulty in obtaining lawyers and fear of reprisals by white hate groups. ''The fact that you cannot find a case" during the law's early years ''is not dispositive," he said.

Falling back to a second line of defense, Mr. Chambers contended that the doctrine of stare decisis--which holds that courts should be slow to abandon principles announced inprior rulings even when they suspect that those ruling are incorrect--should control the outcome of the case.

"In this case, I say that the original decision was right," he said. "But even if you have a question, what has transpired after Runyon has foreclosed this Court from reversing that decision."

Mr. Chambers noted that the Runyon ruling provided "the foundation [and] the building blocks" for several civil-rights laws passed in its wake.

"I don't know what else Congress can do to tell the Court that it endorses your decision and wants to build upon it," Mr. Chambers said.

"To reverse Runyon under these circumstances would fly in the face of Congress's effort to use your decision to eliminate both public and private acts of discrimination," he said.

"If it's true that [Runyon has] been overwhelmingly accepted, then why couldn't Congress repass Section 1981" to clarify that it covers private entities, Justice Scalia asked.

"That's not how things work in this area," the lawyer answered, noting that it "would be time-consuming for Congress to go back and pass Section 1981 in this form."

"You've made a legitimate argument, but I don't think it's conclusive," Associate Justice Anthony M. Kennedy remarked.

The credit union's lawyer, Roger S. Kaplan, contended that Section 1981 "was designed for the limited purpose" of protecting recently freed slaves from state laws that deprived them of the right to enter into contracts.

"Now it is being used as a general-purpose anti-discrimination device," he continued, adding that the Runyon ruling "cut the statute loose from its roots and its legislative history."

"The legislative branch must take control, must provide the remedies," he said. "The problem I see is that this decision threatens the appropriate allocation of authority to the Congress to deal with these situations."

"Why should we go back and change the decision we made?" asked Justice Scalia.

"Because it intruded on the prerogatives of Congress," Mr. Kaplan answered.

"If that's all you have, then you have nothing," the Justice shot back. "That happens all the time when we interpret a statute incorrectly."

Later in the hearing, Mr. Kaplan noted that employees would continue to be protected against racial bias by Title VII of the Civil Rights Act of 1964 and other federal civil-rights laws if the Runyon decision were overturned.

That remark prompted Associate Justice John Paul Stevens to question what protections against bias would remain in education and other nonemployment areas.

"In areas left untouched by Title VII and the Fair Housing Act, those themselves are decisions by Congress not to act," Mr. Kaplan said. "Congress was aware of the problem" of segregation in private schools that was raised in Runyon "but it chose not to act. It is appropriate for this Court to respect that decision."

Later, Justice Stevens questioned whether it would be proper for the Court to extend the coverage of Section 1981 to private schools but not to other private entities.

"I suppose you could do that," Mr. Kaplan replied, "but I don't know how you would draw the line."

The Court is expected to hand down its decision in the case early next year.

In other action last week, the Court agreed to decide whether the amount of a portion of the legal fees charged to the state of Missouri in the Kansas City school-desegregation case was calculated properly.

In Missouri v. Jenkins (No. 88-64), the state contends that lower federal courts should have ruled that paralegal and law-clerk expenses awarded to the black plaintiffs in the case should have been assessed at actual cost. The courts ruled that the paralegals and clerks should be compensated at market rates.

Also, the Court heard arguments in Goldberg v. Sweet (No. 87-826), a case that could have financial implications for public schools in Illinois.

The case questions the constitutionality of the state's 5 percent tax on out-of-state telephone calls. Revenues from the tax are earmarked for education.

A decision in the case is expected early next year.

Vol. 08, Issue 07

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