June 1, 1998 12:00 am

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Statement of Steven R. Shapiro
ACLU Legal Director

Race is once again at the center of the political debate. Just as the President has commissioned a blue-ribbon panel to help resolve racial tensions through a “national dialogue,” and voters across the country are casting their vote on affirmative action programs, the Supreme Court returns from its summer recess to confront the race issue head on with two important cases on its docket.

Both cases, which involve affirmative action, may end up having a wide-ranging impact on how our nation continues to grapple with racial problems. In Piscataway Township Board of Education v. Taxman (96-679), the Supreme Court has granted certiorari to decide whether, and under what circumstances, a school board may rely on affirmative action when deciding which teachers to lay off during a budgetary crisis. The case involves two teachers with equal seniority and equal qualifications, one black and one white. In rejecting the school board’s decision to retain the black teacher, the Third Circuit held that Title VII prohibits any consideration of race except as a remedy for past discrimination. The ACLU has taken a different view of Title VII, arguing in its amicus brief that the state’s interest in maintaining a racially diverse faculty is consistent with the goals of Title VII, which have always recognized the unique role of education in achieving an integrated society.

In addition, the ACLU has filed a petition for certiorari in Coalition for Economic Equity for Wilson (97-369), asking the Court to review the decision of the Ninth Circuit upholding California’s Proposition 209. Proposition 209, of course, amends the State Constitution to bar any affirmative action program, even if necessary to remedy past discrimination, unless it was adopted pursuant to an existing court order. As a result, proponents of affirmative action now face a unique set of political obstacles in California. The President has spoken out against Proposition 209 and the Justice Department has supported the ACLU’s view that it violates the Fourteenth Amendment. Because of its high profile, the case has been closely watched both politically and legally. At latest count, at least 26 other states are actively considering similar initiatives.

Aside from race, the Court will be deciding several other major issues confronting contemporary American politics. As Congress debates campaign finance reform, the Supreme Court will consider whether the government may designate any organization that contributes more than $1,000 to a political campaign as a “political committee” and require it to disclose all of its own contributors. For many years, the Federal Elections Commission has taken the position that this disclosure requirement is only triggered if a “major purpose” of the organization is the nomination or election of political candidates. However, in FEC v. Akins (96-1590), the agency’s construction of the federal campaign finance law was rejected by the D.C. Circuit. The ACLU has filed an amicus brief with the Supreme Court urging it to reverse the decision below because of the chilling effect it will have on constitutionally protected activity under the First Amendment.

The state’s role in regulating campaigns is also at issue in Arkansas Educational Television Commission v. Forbes (96-779). The question presented is whether a public television station owned and operated by the state can organize a debate among congressional candidates and then exclude a third-party candidate from the debate because it does not consider his candidacy to be a “viable” one. The ACLU has supported the First Amendment claim of the excluded candidate on the theory that the state’s action in this case represents a form of viewpoint discrimination that effectively deprives the electorate of the right to decide for itself which candidates are viable.

Issues of viewpoint discrimination are involved, as well, in National Endowment for the Arts v. Finley (97-371). The ACLU represents a series of artists in that case who successfully challenged a congressional restriction that requires the NEA to consider “general standards of decency and respect for the diverse beliefs and values of the American public” in awarding grants. The government has now filed a petition for certiorari asking the Supreme Court to review the Ninth Circuit’s decision that this statutory standard is both unconstitutionally vague and viewpoint-based.

Several other cases are worthy of mention. In Phillips v. Washington Legal Foundation (96-1578), the Supreme Court will review an idiosyncratic Fifth Circuit decision holding that the use of interest earned on client funds in so-called IOLTA accounts to support legal services violates the Takings Clause even though IOLTA is entirely made up of accounts that would not otherwise receive any interest because they are either too small or held for too short a time. The effect of the Fifth Circuit decision is particularly devastating for legal services because federal funding has been both drastically reduced and subject to onerous restrictions that the ACLU is challenging in separate litigation.

In Oncale v. Sundowner Offshore Services Inc. (96-568), the ACLU has submitted an amicus brief asking the Supreme Court to reject the Fifth Circuit’s view that same-sex harassment can never be actionable under Title VII. In Miller v. Albright (96-1060), the ACLU submitted an amicus brief arguing that the question of whether a child born abroad to a single American parent is entitled to citizenship should not turn on outmoded stereotypes about the parental involvement of mothers and fathers. In Crawford-el v. Britton (96-827), the ACLU has submitted an amicus brief arguing that the D.C. Circuit erred in imposing a higher burden of proof whenever a §1983 plaintiff alleges that government officials acted for an unconstitutional reason — e.g., to retaliate for the exercise of First Amendment rights. In Ohio Adult Parole Authority v. Woodard, (96-1769) the issue is whether due process applies to Ohio’s clemency procedures in death penalty cases. And, in Sacramento County v. Lewis (96-1337), the question is whether victims of high speed police chases have a claim if the police acted with “deliberate indifference” or only if their actions “shock the conscience.”

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