Letting sleeping dogmas lie

CIVIL rights questions, like few other issues, often bring uncivil, or intemperate, reactions. The US Supreme Court sparked widespread, even emotional, response last week not by deciding a case - but by announcing it would rehear one. And it isn't even the case (Patterson v. McLean Credit Union) it is going to hear again, which involves alleged racial harassment in the workplace, that is igniting the controversy, nor even a ruling more than a decade ago barring racial discrimination by private schools.

The question really goes back to the Civil Rights Act of 1866 and possibly the Voting Rights Act of 1870, which have been the basis for a host of individual liberties decisions in the United States for more than a century.

The former holds that ``all people have the same right to make, and enforce contracts'' as ``is enjoyed by white citizens.''

This concept, an outgrowth of the freeing of black slaves after the Civil War, is a basic underpinning of racial anti-bias laws.

So why stir things up now? Why doesn't the nation's highest court let sleeping dogmas lie - particularly in an area where there is general national consensus as to the need for equality and justice?

Some critics are saying there is a ``hidden agenda'' on the part of the Supreme Court's new majority - a last desperate effort by Reagan conservatives to rein in what the latter see as runaway rights, which were established by a spate of liberal civil liberties rulings in the 1950s and '60s.

Now Chief Justice William Rehnquist and Associate Justice Byron White have a chance to, in effect, turn around Runyon v. McCrary, a 1976 high court decision that outlawed racist white academies.

Mr. Rehnquist and Mr. White were on the short end of a 7-to-2 vote in that case. But it is very possible that the addition of three Reagan-appointed conservatives to the high court since that time - Associate Justices Anthony Kennedy, Sandra Day O'Connor, and Antonin Scalia - could reverse this decision.

It is too late, however, for the court to rehear Runyon. So the justices will have to settle for Patterson to get at Runyon to get at what some see as those post-Civil War legislative excesses.

Anyway, that's what the liberal critics are saying. They suspect the worst. And some predict the worst: minority protections of many decades weakened, rolled back, or just plain wiped out.

The whole thing would probably not have created such a stir if the court were not so closely divided over whether to reconsider the matter. Five wanted to do so. Four opted against it.

And the dissenting quartet - Associate Justices Harry Blackmun, William Brennan, Thurgood Marshall, and John Paul Stevens - were outspoken in their opposition to rehearing Patterson.

They said that this very action would send a signal to racial minorities that the court is ready to retrench on some of their hard-fought-for rights.

And it was Justice Stevens who suggested that a conservative political agenda was afoot.

``If the Court decides to cast itself adrift from the constraints imposed by the advisory process and to fashion its own agenda, the consequences for the nation - and for the future of this Court as an institution - will be even more serious than any temporary encouragement of previously rejected forms of racial discrimination.''

The majority - Chief Justice Rehnquist and Associate Justices Kennedy, O'Connor, Scalia, and White - flatly rejected the idea that it is their intention to overthrow the 1976 decision, which is predicated on the earlier 19th-century civil rights statutes.

They said they just wanted to review the precedent of allowing individuals to sue private citizens accused of racial discrimination. Speaking with one voice, they insisted that ``it is surely no affront to settled jurisprudence to request argument on whether a particular precedent should be modified or overruled.''

Oral arguments in the Patterson case were originally heard by the justices on Feb. 29. Now they will be reheard in a broader context next fall.

The specific issue is whether Brenda Patterson may sue her former employer, a North Carolina credit union, for damages under a section of the United States Code - emanating from civil rights legislation of the 1860s and 1870s - for allegedly harassing her because she was black.

A lower appellate court had found for the credit union, holding that Patterson could not present her claim to a jury on the ground that in the employment context the code section applied only to decisions on hiring, dismissal, and promotion - not to racial harassment.

The Supreme Court could have decided this case on the narrow grounds of its particular merits. That might have been its wisest course.

But now its majority has indicated it is ready to rethink the whole matter in the light of Runyon as well as the post-Civil War statutes.

Re-arguing, even rethinking, is an important part of the judicial process. And this judicial action may be warranted under the present circumstances as long as there is no predetermined aim to find a way to curtail minority rights or to use the judicial system to narrow the legal options of those who are directly affronted by racial discrimination.

Judge Kennedy, the court's newest member, could be a deciding vote in this area. His specific stances on civil rights issues are not yet well known. But he has a strong reputation for fairness.

During his Senate confirmation hearings, the California judge, referring to the evolution of civil rights in the US, said: ``The whole lesson of our constitutional experience has been that a people can rise above its own injustice, that a people can rise above the inequities that prevail at a particular time.''

The Supreme Court in recent decades has given the nation a healthy push in this direction. It must continue to do so.

A Thursday column

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