Neither Logical nor Fair


Many black, Hispanic and civil rights leaders have expressed dismay -- we think too much dismay -- at this week's Supreme Court ruling that so-called "majority-minority" congressional districts (and by inference such state and local legislative districts) are unconstitutional if they go to extreme lengths to pack minority voters into a district.

Yet this was not the real blow the Supreme Court inflicted on the civil rights movement in the last days of its 1992-1993 term. Two days earlier, the court made it increasingly difficult for minorities to win claims of discrimination in employment. A lot more blacks, Hispanics and women will be directly harmed by this decision than by the re-districting ruling.

At least the re-districting decision has a certain logic and an air of intended fairness. The employment discrimination has neither. overturned a settled judicial policy that if an employer lies in court about why he fired, demoted or otherwise discriminated against an employee charging bias, trial courts should conclude that the lie indicated the employer's explanation was a "pretext" for acting illegally. Now, the Supreme Court says, in an opinion by Justice Antonin Scalia for a bare majority of five justices, that if a pretext is proved, a judge or jury may conclude that there is some other nondiscriminatory explanation, one that the defendant has not previously raised and that consequently the plaintiff has had no fair opportunity to disprove. In fact, the court appears to have imposed on trial courts the obligation to so conclude.

Justice David Souter's dissent for himself and three colleagues was a bitter one, as much for the court's conservatives "turning their back" on so many of its own recent precedents as for the unfairness of the decision itself. He also suggested this does not have to be the end of the matter. He noted that Congress has overruled judicial misinterpretations of statutes before and could again. It can and should. Congress and the Clinton administration, which formally sought an outcome in this case similar to Justice Souter's views, should quickly right this wrong.

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