Civil rights seen as judicial issue of '80s

The man who spent the past four years as the Reagan administration's chief Supreme Court litigator says the major judicial issue of the '80s will be racial hiring quotas. Rex E. Lee, United States solicitor general until his resignation a month ago, argued the conservative administration agenda in court. He can boast some success. He won all 31 of the cases he personally argued for the government. His office won more than 80 percent of its cases overall.

``I think the major issue in the last half of the decade will be civil rights and affirmative action,'' Mr. Lee said in a recent interview. Lee, like the Reagan administration, is opposed to race-based affirmative action.

Three cases currently being appealed to the Supreme Court bear watching, in Lee's view. If the court agrees to hear any of them, it may signal that it wants to take on the broad question of hiring, promotions, and racial quotas.

Lee resigned amid strong criticism from conservatives both inside and outside the Reagan administration for not pushing the court far enough on conservative issues. Eight of the 31 cases he won, he points out, he won by one vote on a split court -- ``which indicates to me that we pushed just as far as we could possibly go.''

Now practicing law in Washington, Lee says the disagreements within the administration were purely tactical debates. The goals, he says, were the same.

In the civil rights debate, conservatives are pinning their hopes now on a Supreme Court ruling last spring -- Memphis v. Stotts. The justices decided that when the city of Memphis lays off firefighters, vested seniority rights take precedence over court-ordered racial quotas.

Whether the Memphis decision can limit affirmative-action quotas in hiring and promotion decisions, or only in layoff decisions, is not clear to Lee.

The case that could be the ``flagship'' of this major civil rights debate is Turner v. Orr, Lee says. A court ordered Eglin Air Force Base in Florida to make a best effort to give blacks a share of certain jobs. Black employees sued, charging that Eglin made no significant effort to change its personnel practices.

In April, the 11th Circuit Court of Appeals upheld the suit. The Supreme Court has not decided to hear it, but if it does, conservatives like Lee as well as liberals in the civil rights community expect a major reading on the ``Stotts issue.''

Two similar cases that conservatives would like the high court to hear involve black and Hispanic firefighters in Cleveland and black construction workers in Buffalo, N.Y.

Lee argues that a strong case can be made for a broad interpretation of the Stotts issue, that in passing the Civil Rights Act in 1964 Congress did not intend to establish racial quotas that he says have resulted in reverse discrimination. Further, the 1972 amendments to the act did not change that original intent, he says.

The Supreme Court last week wrapped up a term that began in October. In assessing its changing character, Lee sees a bench that is becoming less prone to judicial activism in two ways.

First, he says, justices are viewing cases less categorically and more in a sort of cost-benefit analysis. They might be less inclined to throw out tainted evidence, for example, if the loss to the case was disproportionately high. This has had an impact on recent antitrust cases, on freedom of religion cases, and on the use of rules that exclude improperly gathered evidence.

The justices ask, says Lee, ``Is it really worth it to throw out the evidence just because a policeman stumbled [from correct procedure]?''

Second, in interpreting what Congress meant by a law in question, the court is showing more deference to the interpretation of the executive branch, Lee observes. For example, last week the court concurred with a National Labor Relations Board ruling that unions cannot discipline members who resign the union during a strike.

Of this new deference, Lee says: ``That's one of the major accomplishments, frankly, of the last three or four years.''

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