Race Is Key Issue of '97 Term

In early October, the ritual is for Supreme Court watchers to wail about a dearth of major cases. Yet by June, as the rulings come down, that view invariably changes: The term appears significant in ways no one predicted.

This year, however, the prognosticators of a ho-hum year at the high court may be right.

With the exception of a major affirmative-action case out of New Jersey, no great constitutional struggles are brewing. There are no life-and-death cases this term, and no blockbuster "states' rights" cases. Instead, the justices are occupied with technical problems of statutory interpretation, jurisdiction, and legal procedure.

It looks, in short, like a term only a lawyer could love.

"The court was incredibly exhausted at the end of last year, having decided 10 of the toughest cases in some time," says David O'Brien, author of an annual Supreme Court review. "This term will be low key; they want a breather."

Moreover, the justices themselves have hinted that perhaps a slower year is in order. Thomas Goldstein, a Washington attorney who tracks the high court, notes that the court took a year to recover after its hard-fought 5-to-4 ruling to uphold abortion in June 1990.

Still, one dispute perking interest concerns same-sex harassment. The case stems from a gay man who worked as an oil-rig roustabout and who quit his job after crude and sexually aggressive treatment by his co-workers. The question: Can the man sue under civil rights laws?

This week brings an important free-speech case that could influence candidates' access to public TV. Last year, a federal court ruled that an Arkansas educational channel that sponsored a 1996 presidential forum was wrong to exclude GOP candidate Steve Forbes. The editorial staff decided Mr. Forbes was not at the time a realistic candidate; now the court may decide how much leeway a TV staff has to make that determination.

This year also continues a trend of fewer cases. As of this writing, 58 cases are on the high court docket; 15 years ago it was not unusual for the court to have 80 on its first Monday.

But the court may yet take additional cases. Petitions arrive year round - a record 8,100 of them last year. Customarily, the court stops accepting cases at the end of January and issues its decisions by the end of June.

Though the term is light, the year could yet pack a punch in an often-explosive issue for American society: race.

For one, the court may hand down a broad ruling against affirmative action in a teacher-layoff case from Piscataway, N.J. The justices also will decide whether to take a case challenging California's Proposition 209, a popular referendum that ended race preferences in admissions to colleges, state contracting, and state jobs.

Recent high-court rulings on race come amid a national rethinking on the issue - stirred in part by previous court rulings. In the past five years, the Rehnquist court has steadily eliminated racial categories under the 14th Amendment, especially in voting rights and affirmative action. Last year, it let stand a federal circuit court ruling that forbade using race in college admissions. As a result, the number of blacks admitted to graduate schools in Texas and California plummeted. While President Clinton has installed a new commission on race to begin a national dialogue on the issue, some in the black community view the panel with skepticism; they note that the White House recently reversed its pro-affirmative-action position in the Piscataway case.

Court watchers offer several explanations for this term's light load. Some say few major cases are emerging from the lower courts. Others say the court is not reaching out this year - as it did last year in taking a case involving the Religious Freedom Restoration Act. Still others suggest the Rehnquist court is pausing to reflect upon its direction - marked by a broad rethinking of individual rights and of the power balance between the US government and the states.

* The first article in the series appeared Oct. 3.

HIGH COURT CASELOAD

Fifty-eight cases are before the justices this term, including the following:

AFFIRMATIVE ACTION

Faced with the need to lay off staff but mindful of racial diversity, the school board in Piscataway, N.J., kept a black teacher, Debra Williams, over an equally qualified white teacher, Sharon Taxman.

At issue: Was the board's action legal, and is racial diversity alone a valid reason for an employer to lay off a person of one color over another?

SEXUAL HARASSMENT

Former roustabout Joseph Oncale said he quit his job on a Louisiana oil rig after he was sexually assaulted and threatened with rape by three coworkers.

At issue: Can conduct between men amount to sexual discrimination, prohibited by civil rights law?

CANDIDATES' AIR TIME

An Arkansas public TV station decided to exclude GOP presidential candidate Steve Forbes in a 1996 debate, arguing he was not a viable candidate at the time.

At issue: Did the station violate Mr. Forbes's free-speech rights, and what discretion do state-owned broadcast networks have in determining which candidates can participate in debates?

OTHER ISSUES

* Defending the poor. The Washington Legal Foundation, takes issue with money that is set aside from legal fees and put in state charities to fund the defense of poor people. A ruling could cut resources used to defend the poor.

* Polygraph. A question of the admissibility of polygraph tests in military court martials could set a new standard for the use of the controversial tests in courts around the country.