The MacNeil/Lehrer Report; 2067; Supreme Court & Desegregation

ROBERT MacNEIL: Good evening. Only 20 years ago or so, as President Eisenhower was beginning his second term, Washington, D.C. was still in part a segregated city. It`s hard to remember that now. Now we`re about to install a white southern President who will send his daughter to a largely black school in the center of the capital. The stimulus for much of that enormous change in American life came from the Supreme Court of the United States; it goaded politicians into action and sanctioned civil rights activists. Is the present Supreme Court, its spirit changed by Nixon and Ford appointments, finally giving up that crusading role? Yesterday the Court set aside a far reaching school busing order in Austin, Texas. Tonight we examine the significance of that decision. Jim?

JIM LEHRER: Robin, the Supreme Court used only one sentence to do what it did in that Austin case. In the simplest of terms it told the lower courts to re-think the decision using an earlier Supreme Court ruling as its guide that was a June decision concerning alleged employment discrimination. It involved charges that a District of Columbia police examination discriminated against minority groups. Evidence of the discrimination was the fact that an unusually high number of blacks failed the test. The Supreme Court rejected the argument that test results automatically prove discrimination. There must also be proof that the writers and givers of the examination did it all with the intention of discriminating. The Court`s crucial word, of course, is "intention" or "intent." As the Supreme Court reporter for the Washington Star, Lyle Denniston reported and analyzed both the D.C. and Austin decisions, as he has many others in the past. Kyle, how do you read. what the Court is saying in the Austin case and what its implications could be?

LYLE DENNISTON: Jim, for about two years the Court has been pressured -- and I think "pressure" is a proper word -- by the government of the United States to find a vehicle or a means by which they could say that some judges were going too far in ordering desegregation, and most particularly going too far in ordering children to ride buses to desegregated schools. Some secondary pressure, I think, has come from within the Court itself. I think those two sources of pressure have now found the vehicle whereby a ma4ority of the Court, or potentially a majority of the Court, can say, Yes, indeed; the judges have gone too far."

LEHRER: The key word is "intent", do you think?

DENNISTON: The key word obviously is "intent", because if you don`t rely upon intent, then you go back to the easier formula, which is to say that black schools or white schools -- serving only one race -- do in fact have a discriminatory impact on students because of their race. And the Court no longer, it seems to me, is eager to focus on the impact; they want to be absolutely persuaded that the segregation that exists was intentionally achieved by official actions, and the D.C. case on the police recruiting test provides them with a basis on which they say, "Unless you`ve got legally imposed discrimination -- which becomes illegal -- then you can`t go very far with a remedy." And so some black schools are going to remain all black, and some white schools are going to remain all white under this approach.

LEHRER: All right. Now, what does this mean down the line -if this in fact is what the Court is saying -- what are the implications of this down the line?

DENNISTON: I think the impact will be most evident in urban areas, where the Court is getting the most visible pressure.

LEHRER: Northern urban areas.

DENNISTON: Northern urban areas, but not exclusively in northern urban areas -- for example, Austin, Texas is not northern, but there are, for example, cases coming to the courtroom there now involving the Detroit schools, involving the schools in Indianapolis, a case recently there and likely to come back again involving Wilmington, Delaware. In all of these areas there is going to be a very heavy burden to prove that the amount of busing or desegregation, or associated programs like academic enrichment ordered in Detroit, can be justified. How can you justify that when you can`t prove that there was a legal imposition of desegregation in the first instance?

LEHRER: And so that means that if schools become all black or all white, or have become all black or all white, as a result of residential patterns,, as a result of employment patterns, or some thing like that ... but as long as no body of government said, "Okay, we only want blacks to go to that school and we only want whites to go to that school," it`s not unconstitutional and there won`t be any court rulings on it.

DENNISTON: In addition to that the school board can use, it seems to me -- at least according to the argument made by Mr. Justice Powell -- can use a neighborhood school policy, even understanding that that will result in segregated schools, and not have violated the law.

LEHRER: Thank you, Lyle. Robin?

MacNEIL: As General Counsel of the NAACP, Nathaniel Jones has been closely involved in many school desegregation lawsuits around the nation. Mr. Jones, how do you read yesterday`s decision?

NATHANIEL JONES: As I see it, Mr. MacNeil, this decision does not substantially depart -- in fact, I don`t think it departs at all -- from the standard that the Supreme Court has set for the desegregation of schools. It has always required, in the context of northern desegregation, a showing of purposeful, intentional action by the school authorities or, in other words, a show of state action; and absent a showing of state action, this court has not permitted the imposition of a remedy. I know of no case that has arisen in the northern community in which a court has ordered a remedy to be pursued by a school board without first finding intentional, purposeful action on the part of the school authorities.

MacNEIL: I bow to your intimate knowledge of something I only know a little bit about, but my impression was that in the past the Supreme Court and other courts had taken de facto segregation as implying intent, if you like.

JONES: No, the fact that there may be racial disproportions or that there may be racial imbalance in a school system is not a sufficient reason, the courts hold, for the school system to be required to develop a remedy.

MacNEIL: So you do not see this as evidence of a significant new spirit, an important straw in the wind.

JONES: No, I do not. The spirit -- I `agree, there is a spirit in that court which disturbs all of us who are involved in trying to achieve equality under the Constitution-by using the judicial process.

However, all the Court did in this instance as I see it was to send the case back; they vacated and they remanded and they instructed the lower court to develop a new plan, and in so doing keep in mind what the Court said in the June decision of Davis v. Washington, which was an employment case. And in that case what the Court basically said was, The mere fact that you have disproportionate impact in an examination is not sufficient reason to justify the development of a remedy unless you show that there was an intent manifested on the part of those who administered the program."

McNEIL: To keep the blacks out by deliberately designing the exams to do that.

JONES: That`s right. In other words, what the Court has done is to transfer to the employment field the standard that it has required to be pursued in the educational field.

MacNEIL: Let me ask you this: for many parents around the country, white and black,-but predominantly white, presumably, busing has been perhaps the most painful and unhappy remedy to achieve desegregation. Should they take hope -- rightly-or wrongly -- from this Supreme Court decision and say, "Oh, thank God that`s going to end now; we won`t have to put up with that any more", or do you think not?

JONES: No, I think that kind of an interpretation would constitute another step in misleading the American public as to what they can expect. I think there`s been too much of that. One of the reasons we have so much frustration on this question is that people have been told and they have been misled into thinking that if they defy and resist and obstruct long enough, someone is going to come to their rescue, namely the court. I think the court would be hard put to cut back and to eliminate transportation as a means of desegregation in view of what it said about transportation in the Charlotte case back in 1970.

MacNEIL: Okay. Let`s get another view. Jim?

LEHRER: Yes, from one of the foremost students of the new Burger Court; he`s A.E. Dick Howard, a Professor of Law at the University of Virginia, now on leave as a scholar at the Woodrow Wilson International. Center for Scholars here in Washington. He was a law clerk for the late Justice Hugo Black and is now working on a book about the Burger Court. Mr. Howard, how do you interpret the Austin case in terms of what this Burger Court may be saying about its views toward discrimination and desegregation cases?

A.E. DICK HOWARD: Jim, the Austin decision is a very brief order; it doesn`t really say a great deal. But insofar as one can gather some hints from it, it seems to be confirming things which began happening as soon as the membership on the Court changed in the late sixties and early seventies. One of the manifestations of the Burger years on the Court has been a greater willingness to ride herd on district courts in desegregation cases. If you think back to the days of the Warren Court in the late fifties and early sixties, one is struck by the tolerance of the Supreme Court for whatever district courts may have been doing in devising remedies; there really weren`t very many major Supreme Court decisions in the first ten years after Brown vs. Board of Education.

LEHRER: They just stamped with approval most of what the district courts did.

HOWARD: Pretty much stamped with approval. Now, at the same time, the problems were not the same then as they are now; most of those cases involved southern states and they involved the dismantling of state-imposed segregation. Insofar as cases in the seventies involve that kind of situation, I don`t see that the district courts have any less remedial power today than they had in the years of the Warren Court. What has changed, however, is that as the Court in the seventies has had to confront rather more difficult problems, such as metropolitan consolidation, widespread busing and other phenomena in northern as well as southern states, Chief Justice Burger and the new men on the Court have, I think, taken a much closer look at what district courts have been doing. They started that with this Charlotte-Mecklenberg case five years ago; and I think if you read that case closely, on the one hand it seems very generous of district court power, but there are a lot of seeds planted -- lines that one might expect to be drawn when the district courts went too far.

LEHRER: All right. I`m going to put you on the spot here. Draw those lines. If you were sitting out as a district court judge in Austin, Texas or Indianapolis, Indiana, how would you interpret what the Supreme Court has told you?

HOWARD: Some of the lines that are being drawn include a temporal limit on what district courts can do.

LEHRER:. What does that mean?

HOWARD: That is to say, if a district court has found that a school board has cleaned up its act and dismantled a segregated system, the Pasadena case, which the Court decided last spring, makes it clear that a district judge may not, on a year-to-year, ongoing basis constantly adjust the boundaries of school attendance zones; that once you`ve gotten out from under the prohibition of the fourteenth amend meet, then at that point the district court`s remedial powers end.

LEHRER: Overall, Professor Howard, are they retrenching from the decisions of the Warren Court in terms of their commitment to the basic idea of desegregation?

HOWARD: That`s a mixed picture. I think there`s some continuity. I think basically this court is as committed as the Warren Court was to putting an end to all legal vestige of segregation. I think this court is no more willing to be racist than the Court was in the sixties. I think where you move beyond legal segregation to those problems which arise in social context, from economic disparities or residential patterns, or whatever, the Burger Court, in race cases as in so many other cases, is content to leave that to the political process. This Court doesn`t see itself as the forum wherein every social problem gets solved.

LEHRER: Well, for Instance, Lyle, there was another decision from the Supreme Court today which involved the rights of women. Tell us about that case specifically, and then how do you think that fits into this pattern of what Professor Howard was talking about?

DENNISTON: The Court today decided that a private employer -- General Electric Company -- could exclude pregnancy from its sick pay plan; that is, when a worker goes home, she is pregnant, she cannot have her income support from the company. And pregnancy is the only medical condition that is excluded from the plan. The Court to ay said that is not sex discrimination; they said it`s simply an insurance package and the company has chosen to cover some forms of medical condition and not others. Now, I take it what that means in this context is that the Court is saying in the employment area that let`s be very sure that we`ve got an illegal form of discrimination in the first instance. And in fact, the Court today hinted - - four members, at least, of the Court hinted -- that they`re saying that under the federal equal employment law, that is, the Civil Rights Act of 1964, that judges can go no further than they could go under the fourteenth amendment`s guarantee of equal protection; and the Washington against Davis case was again cited for the theory that if you prove an impact on one race -- or in this case, one sex -- you haven`t made your whole game yet, you haven`t proved your whole point.

LEHRER: That fits the point you were making, though, does it not?

HOWARD: That`s right. And I think one of the important things about this morning`s decision is, that it was, in final analysis, a statutory construction case. And it`s clear to me that if Congress chooses to view pregnancy benefits differently and make it clear that they are to be included in employer plans of the kind that was involved in this case, that the Court will respect that judgment.

LEHRER: But right now they view it, as you said, as a private matter, the private jurisdiction of a company to make these kinds of decisions.

HOWARD: Well, there was very little legislative history bearing specifically on sex discrimination. A lot of that`s evolved through guidelines laid down by administrators, and that`s a fairly murky business, giving the Court a chance to go either way.

LEHRER: All right. Mr. Jones, in New York, let me ask you: you told Robin a minute ago that you were concerned about this case yesterday -- the Austin case -- in terms of its overall implications; let me ask you, where do you think this Court is headed? Do you agree with what Lyle Denniston and Professor Howard have said?

JONES: Yes, generally I do. I think this Court is headed where it has been headed since the early seventies, and that is in cutting-back on remedy; and to some of us that means a severe restriction on the meaning of the rights that are aimed at being enjoyed by members of the minorities. The Supreme Court said in the Detroit school district case, the interdistrict case, a number of things which in effect really undercut the meaning of Brown.

LEHRER: In the Detroit case that`s where they ruled out consolidation of school districts to achieve racial desegregation.

JONES: Well, they did more than that.

LEHRER: All right, but just for reference purposes.

JONES: Right. What the Court did was to construct a whole new level of proof that must be offered by plaintiffs in order to be entitled to full vindication of their constitutional rights. I see the Court moving from that area into a restriction and a constriction of the remedy within a single school district, and I think that can be rather ominous. But I feel with regard to the Austin decision, much too much, perhaps, is being made of it. I think that what the Court did was to send the case back for the lower court to devise a plan. that in its judgment would conform to the standards that are applicable in northern cases, and that is the demonstration of intentional or purposeful conduct.

LEHRER: All right, thank you. Robin?

MacNEIL: Let`s pursue a point that was mentioned in Washington a moment ago. Am I right -- is it too simple to say that what this Court is doing is leaning on what is legal or illegal under the `64 Civil Rights Act and the other acts, whereas the previous Court, the Warren Court, was leaning on what is unconstitutional, which it interpreted in a broad way? In other words, this Court is trying to force the politicians to deal with these problems, like the remedies for desegregation of schools -- is that too simple a way of putting it?

JONES: No, I think that fairly states the case. I think in addition what this Court is doing is really restricting the opportunity that people have to really exercise these rights, and I think the Court is trying to strike a happy medium, as it would call it, between the competing interests that may be asserted throughout the country.

MacNEIL: Lyle, do you agree with that, that it is deliberately an attempt to force this back into the political arena, into the state legislatures and into the Congress, which has had great trouble dealing with these issues?

DENNISTON: Robin, I think that`s one instinct that`s at work here. This Court has demonstrated over and over and over again that it does not have a great deal of faith in the judiciary as an institution of social reform. For those reasons I think they would like to have a lot of these problems resolved in the legislative process; but I think the other instinct that`s at work -- and we saw that in the Washington against Davis case last term and in today`s decision -- where the Court is saying, "We are not going to give the most expensive view of what comes out of the legislatures or Congress. We are going to interpret this pretty narrowly because our view of what is discrimination, and therefore our view of the kind of cures is a pretty limited one." For example, in today`s decision in the sex discrimination case, four members of the Court said discrimination under the 1964 Act probably means the same thing as. discrimination under the Constitution; and that`s a position that every court of appeals in this country has refused to take in prior cases of discrimination, saying that if you have a legislative proscription of discrimination, that is to be read more expansively than the constitutional ban on discrimination. And the Court is setting out almost on its own, virtually isolated from the rest of the major sources of power in the federal judiciary, to say that discrimination is a very narrow phenomenon to be cured with comparatively very narrow mean.

MacNEIL: Taking what you`ve just said, Lyle, and what Mr. Jones has just said about the Court limiting the remedies that people can use to claim their rights, would you agree, Professor Howard, that this adds up to a very obvious spirit or intention on the part of this Court to slow down the pace of the advance in civil rights areas?

HOWARD: I think that this states the attitudes that are at work on the Court; I think they`re not so directly concerned about the pace of social progress in the country, either in racial or in sexual quality terms, as they are concerned about the mandate and expertise of the courts to deal with problems like that. I think it`s a court which, rather in the spirit of Felix Frankfurter and John Marshall Harlan, who were dissenters in the Warren days, views the role of the courts as a more limited one and the role of the political process as being the place where one looks-for this kind of social reform. I think, accordingly, they`ve tended to limit access to the courts through both substantive decisions and also some of the more technical decisions, like those touching standing or class action suits, or the vehicles by which environmentalists and consumerites, and quite a number of people who are not necessarily blacks or women, try to get into court.

MacNEIL: Is the Supreme Court a good goal now for somebody bringing a civil rights suit to aim for, or would it be better for him to try and get it settled in another way or at a lower stage? It used to be the case that the big battle was to get all the way to the Supreme Court, was it not?

JONES: Yes, that was the situation. Many civil rights activists, lawyers, take the position that now is not the time to present controversial cases to the Supreme Court because of a fear of what the Court might do with it. We took that position in the California Hacchi case, which was a case involving a special admissions program; our organization feels that that case should not be appealed to the Supreme Court because of what it might do with it once it gets it. I think, in response to a comment of Professor Howard`s, I think what is happening here is that the Supreme Court is attempting to force some of these questions back into the legislative arena, and this has the effect of denying to, at least, unpopular minorities and racial minorities, a chance to really vindicate their rights...

MacNEIL: Except as they are represented in those political legislatures.

JONES: Well, there`s a myth abroad that we have arrived, and that we have all kinds of power, that blacks are middle class, and so forth, and that we have all kinds of clout, which isn`t true. The fact of the matter is that the reason we have to resort to the litigation route to obtain some manner of vindication is because of the excess of the majority, The reason we have problems in school desegregation is because of the roughshod manner in which the majorities have ridden over us; and it`s only been through the power of the court that we have had some balance brought to this area.

MacNEIL: That`s an interesting perspective. I think we`ll have to leave it there. Thank you very much, gentlemen in Washington, and Jim, and thank you, Mr. Jones. Jim Lehrer and I will be back tomorrow night. I`m Robert MacNeil. Good night.