October 1, 1997 12:00 am

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Statement of James E. Ferguson II
ACLU General Counsel

Once again, the Supreme Court will have an opportunity to speak on one of the country’s most divisive issues: race and affirmative action. In recent years, the Court has exhibited a perturbing tendency to bury its civil rights head in the elusive, but suffocating, constitutional sand of neutrality. As the Court's sand of racial neutrality rises, the tide of racial equality washes back out to sea. We greet the upcoming term of the Supreme Court with growing fear that the Justices may yet again follow the path of racial neutrality rather than racial equality, as they have done so often of late.

As the country continues to seek ways to overcome its persistent problem of racial division, the Supreme Court this term will consider two cases involving affirmative action that are destined to have a profound impact on the debate. These cases could well determine whether affirmative action can continue to be used in the American quest for racial justice and equality.

The first case is Piscataway Township Board of Education v. Taxman which the Court has already agreed to hear. Piscataway raises the question of whether affirmative action may be used to avoid the creation of an all-white department in a school serving a racially mixed student population. The Piscataway School Board faced an unusual situation where declining student enrollment required the lay off of a teacher in its business studies department that had only one African American teacher. It turned out that the teacher had the same seniority date as a white teacher, the two of them being the most junior in the department. The Board adopted the superintendent's recommendation to lay off the white teacher to preserve some measure of racial diversity in that department. The Third Circuit not only rejected the Board's action in retaining the black teacher, but held that affirmative action could not be applied to foster diversity, but only to remedy past discrimination. The Supreme Court now has an opportunity to give continuing vitality to Title VII by recognizing its historical role of moving us toward a more integrated society. On the other hand, the Court might take a more narrow view of Title VII and limit it to use only in cases involving a demonstrable history of discrimination.

The second case is Coalition for Economic Equity v. Wilson, where a certiorari petition has been filed, but not acted upon, seeking to put before the Court a broadside attack on affirmative action embodied in California's Proposition 209. The fate of Proposition 209 in the Supreme Court has far reaching implications because if the Ninth Circuit opinion is upheld, a large number of states are poised to follow suit.

The ACLU stands firm in its support of affirmative action as a necessary and useful tool in creating a diverse and integrated society, as well as in combating historical discrimination. Our amicus brief in Piscataway supports the action taken by the Board and rejects the Ninth Circuit's notion that affirmative action under Title VII is limited to remedying past discrimination. The United States Government takes a more attenuated position, arguing that the Board action in Piscataway went too far, but the Court's ruling was too broad in holding that Title VII could never be applied in cases that did not involve historical discrimination.

Fortunately, the Government has not flip-flopped on Proposition 209 as it did in Piscataway. We can only hope that the Government will remain firm in its opposition to Proposition 209.

The current Supreme Court has shown a disturbing tendency toward replacing its historic role of fostering and protecting equality with fostering and protecting neutrality. Current experience, as well as history, teaches that the Court cannot fulfill its role of assuring equality and protecting minorities by retreating to a safe haven of neutrality in a society that remains race conscious. The pressing problem of race is reflected in the President's appointment of a Commission on Race, which is scheduled to report next Spring.

Ever since the"June Massacre" of 1989, when the Court eviscerated a number of civil rights protections and dealt withering blows to the enforcement of civil rights laws, the Court has steadily retreated from its historic role of protecting racial and other minorities. For most of the past ten years, the Court has engaged in serial setbacks of civil rights protections. In Wards Cove v. Antonio, the Court attacked the "disparate impact" analysis that Title VII allowed. In City of Richmond v. Croson, the Court assaulted affirmative action by applying "strict scrutiny" standards to thwart the efforts of public agencies to take positive steps to remedy systematic and historical racial discrimination, notwithstanding the remedial nature of such programs. In Adarand Constructors v. Pena, the Court imposed a strict scrutiny standard for racial classifications in federal programs designed to benefit racial minorities. In school desegregation cases, the Court has made it more difficult for school systems to eliminate remaining vestiges of historical discrimination in cases such as Oklahoma City v. Dowell, Freeman v. Pitts, and Missouri v. Jenkins.

It is particularly distressing that the Court's retreat on civil rights comes at a time when there is increasing tension between the races and less and less demonstrated commitment among the populace to effectively address our problems of race.

In the area of voting rights, beginning with Shaw v. Reno, the Court has stretched standing principle beyond recognition in order to allow white plaintiffs to challenge majority black voting districts and has virtually eliminated race as a significant factor in drawing electoral districts. Here again, the Court's notion of neutrality has diminished the meaning of racial equality.

If the Court chooses to ride the popular wave of assault on affirmative action in Piscataway and Wilson, the Court's retreat on civil rights will be virtually complete. We can look forward to our workplaces, public schools, universities and neighborhoods looking more and more like the entering classes in the law schools at the University of Texas and University of Southern California, where the number of African-Americans and other minorities decreased dramatically.

There is always a chance that the Court will rule in favor of civil rights in these cases, but history and experience with this Court tell us that our optimism for civil rights claims must be closely guarded. It is unlikely that when we look back upon this Term we will be able to say that the court protected the rights at stake in Piscataway; we are more likely to say that the Court packed its neutrality bags and went that-a-way.

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