Tipping The Scales

HIS ADMINISTRATION has raised hypocrisy to a new political art form, so perhaps Ronald Reagan's civil rights policies should come as no surprise. While the President preaches laissez-faire in the economic arena, his Administration has worked vigorously in the courts to undo state policies benefiting minorities.

The Supreme Court withstood one such Administration onslaught last week when it refused to hear a Tennessee school busing case that the Reagan Administration had hoped to use to discredit mandatory school desegregation efforts. The case involves a Nashville court-ordered busing plan for students from kindergarten through high school in both city and suburban school districts. Last November, the Justice Department joined the city's appeal of a circuit court decision backing the plan because it found that Nashville schools are still segregated even after 27 years of civil rights litigation.

In a landmark 1971 case, Swann v. Charlotte-Mecklenburg Board of Education, the Supreme Court upheld a lower court's authority to mandate school busing where government policy had been shown to create segregation. But in its friend-of-the-court brief, Reagan's Justice Department argued last week that lower courts have interpreted Swann too broadly and should be allowed to take into account the "educational, social and economic costs of busing." These "costs," at least as argued in the Nashville case, include "white flight" from the public school system.

The Court unanimously rejected the appeal, refusing, for the moment, to backtrack on its past desegregation rulings. But the decision does not preclude further attacks on court-ordered busing plans. Assistant Attorney General William Bradford Reynolds, who heads the Justice Department civil rights division, said last week that the Court's refusal to hear the appeal did not mean that the legal issue was closed. "In an appropriate case, he added, "we will not hesitate to again ask the Supreme Court to rule on this question, which is so important to millions of citizens." The Administration is currently trying to dismantle busing plans in East Baton Rouge, La., Charleston, S.C., Yonkers, N.Y. and Chicago.

The troubling thing about the Justice Department's position is that it argues against school busing on purely expedient grounds, apparently accepting "white flight" as a legitimate response to desegregation. Desegregation is not a luxury, nor should it be legitimized only when popular among whites. The Supreme Court authorized courts to order busing plans in the first place only after it determined that nothing short of mandatory measures could be counted on to integrate school systems.

On the very same day the Court handed down its decision. Washington's Joint Center for Political Studies released a study showing that racial segregation has increased sharply in public schools over the past 15 years. That study, commissioned by a Congressional committee, also found that school districts with wide-spread court-ordered busing plans had made the most progress toward integration. Voluntary desegregation efforts, which the Reagan Administration advocates, had proved largely ineffective.

The Justice Department's watchful eye, curiously blind to such evidence, is not fixed solely on the public schools. The Department has also recently intervened in state cases involving affirmative action plans in public employment. In New Orleans, the Department is opposing a preferential hiring program for police, launched because the police department administration says it needs more Black officers to improve citywide protection. (Similar affirmative action plans have been approved by lower courts, and other cities are successfully phasing them in.)

Closer to home, the Justice Department has also filed a brief siding with white police officers and firemen in Boston who have filed a reverse-discrimination case scheduled to come before the Supreme Court this spring. When layoffs caused by Proposition 2 1/2 threatened to undo the effects of a recently approved and implemented affirmative action plan, a Circuit Court ordered the departments to alter their seniority plans to preserve in part the effects of preferential hiring. That decision resulted in the firing of some whites who would have retained their jobs under the established seniority plan, and led police and firefighter unions, with the state of Massachusetts, to appeal to the Supreme Court. The Justice Department's friend-of-the-court brief in that case represents the first time the federal government has entered a Supreme Court reverse discrimination case on the side of whites.

THAT THE ADMINISTRATION opposes these affirmative action programs does not necessarily damn it as bigoted. Affirmative action, like school busing, is an emotional and highly complex issue, and recent cases have shown preferential hiring to be a double-edged sword in which the same arguments can support either side. But the Administration's apparent readiness to throw itself into an already complicated and delicately balanced process of judicial action is yet another example of its penchant for ideological confrontation.

None of these cases is so revolutionary as to warrant the Justice Department's comment or intervention; rather, each seems a new pretext for the Administration to assert its predetermined stance on civil rights policies. Even the Boston case, which presents the legitimate constitutional question of whether seniority plans are exempt from remedial affirmative action, is by no means a glaring case of unwarranted reverse discrimination. All race-conscious hiring plans seem destined to create some backlash for white workers, and courts have repeatedly asserted that it is not unreasonable to ask whites to forego advantage they enjoy because of prior discrimination.

Courts have been struggling with these subtle questions of affirmative action, and of busing, for many years; political pressure on the judiciary can only upset any balance that has been achieved. It's time for Reagan to take his thumb off the scales of civil rights justice.