Fox v. North Carolina Brief of the Respondent in Opposition to Petition for Writ of Certiorari

    ii
ii

Uncivil Times at "Justless"
Color-blind or blind to the legacy of color?

Er ver smce hc took ofice as the Justice
E D"p.n-"nt's civii rigJra chief ia Jrrly
1981. William Bradford Reyuoids has [rc-
quently and paseiolately declared his
dcdication to the pnnciple of a "color.
blind" society. tn pursuit ef this [ig[
ideal. he has tirelessly engaged in do-
barcs and givcn speechcs defending the
Rcagan Adminisrariou's determinarion
"!o root out and do away with dis-
criminarion." On one occasion.
the normally aloof and patncian
Rcynolds ev.en clasped the hand of
the Rev. Jessc Jackson and joincd
him il a chonrs of We Shall
Overtome. Oo another. he went
so lar as !o compare thi Reagan
Admrnisration's views on civil
rigfia with thosc of Manin Luthcr
King Jr.

Civii righa acdvists reply that
wirh friends like Reynoids. Manitr
Luthcr King wouid have got out of
the segregatcd back of the brrs-
but not mrrch fanhcr. "For 25
yea,nl." says Ralph Ncas. exccutive
direcrcr of thc Leadcrstup Confcr-
ence oE Civil fughts. "the Depert-
ment of Jr.stice has bcen viewed as
a champion of civil rieb6. Today it
is viewed as an adversary." Artor-
ney Ted Shaw. who uscd to work
there. deridcs it as the ''Justless" Depan-
mcnt. Thc cndcs charge.that under Reyn-
olds thc civil righa division has gone bad-
ly wrqts& "Atl it has done ia ttre voting
area is tight black voters," says Armand
Derfncr of Oe Joiat Center for Potiti-
cal Studies. The divrsion has cut back on
enforcemeu! of housrug-discriminadoo
laws, chailcaged even voluntary schooi-
busrng desegregation programs, and is
now makiag an all-out assault on the af-
firmative actioo empio:/ment agreemenc
that it actively helped lashion ia previous
Administrations.

Last week the Jusdce Department
sucd to up,sel two coun decrees it had
helpcd negodate during the Carter .{d-
ministration. which created oumerical
goals for the hiring and promotion of
biacks and women in thc Indianapolis
police and 6re depanments. The decree
is one of 50 the Jusuce Depanment
no\v says must be modiied rn light of
a t984 U.S. Supreme Coun ruling rhat
protects whtte workers with seniority
from bcing laid off before more .;unior
blacks hired rrnder a€Ermadve action
plans. Dcspite scveral lower federal coun
ruiings to the contrary. the Justice De-
partment has rnsisted rhar the high court
decrsion makes all aff.rmadve action
quous iilegal.

Justice's Indiana potis suit was

brougft over the protcsts of local ofrcials.
"We are happy with the agreemcnt," says
lndianapolis Rcpublican Mayor Witl;as1
Iludnut "It is uscful for thc city, and we
shail contiaue to work under it." Inde€d.
no job applicant has sucd to overtunl the
plan. Oficials in half a dszen otber ju-
risdictions also condemned Reynolds'
coursc of action. And the N..{.A.C.P. 6led

its owu suit last week to block departmcnt
intcrfcrence with thc 50 affrmative ac-
rion programs. It has schcdulcd a dcmon-
suation at Justice this Tucsday to pro-
tcst Admiflstradoa civil rig[ts policies.
Reynolds "is a right-wrng, ideological out
rn my judgmeat," says N.A.A.C.P. Execu-
rive Direcrcr Bcnjamin llmks.

Less sccure men might cringe in thc
lace of such a withering iadictmcnt:
amiablc. combative Brad Reynolds has
scrved as an unflinching lightdng rod for

Law I

attacks on Reagan policies. Hc vigorously
dcfends his approach iul an attempt to fos-
ter a society that is "race and scx acutral."
A scion of the wealthy Du Pont family,
Reynolds.42. argtrcs that efforts to reme-
dy hrstorical discrimination through quo-
ta-bas€d aff.rmative action plaas arc at-
tcmpts "to cure discrimrnation with
discriminadon," thercby !.ishting both
the Constitutioo and the l9&1 Civil
Rigfits Act. Reynolds insisB rhat he is as
dedicated to battling bias as any of his
predcccssors. but only in cascs where in-
dividuats can show thar thcy personally
wcre discriminated against.

Whilc sritics wbo know'Reyn-
olds conccdc that he is sinccre in his
bcliefs, thcy add tbat his dream of a

'color-blind sociery ignores rhe real-
life hardship of blaclcs, nispanics
and wom€o who are unablc !o 6trd
.jobs and housing "I just can't have
mrrh respect for people who trave
thesc thcorcdcal vicws without very
mrch scnsitivity !o thc reality," sala
Yale law Proftssor Drew Days,
who did Reynolds'Job for rhe Car-
tcr Adniri$ration. He negotiatcd a
number of buing and afrrmative
action progams that Rcyuolds is
nov trying o undo.

Droves of thc Caner-era law-
yers have resrgned from Justice. in-
cluding haU of thc civil ngha divi-
sion's black attornc:/s. Many of the
t75 career lawyers s6v qrqlking
for Reyno{ds are bored aad idle,
incidsrs say, becar.rsc all thc impor-

taot caser are handled by potitical ap-
porntees clocc to Reyaolds. "In the past,
carc€r attoraeys did everythiog," says
Philadclphia Lawyer Timothy Cook, who
when he resrgned in l9E3 wrote Reynolds
a biistering 30-page memo. Now. he says,
"only a little squad of special assrstanu
writes bnefs." Thec briefs strikc rhe
more libcral attorn€ys as lizqrrs. "It's like
Through rhe Laking Glass," says Muriel
Spence, who left to join thc Arnerican
Civil Libenies Union in 1983. "Every-
thing is exactly thc opposite of the way it's
supposed to bc."

Top Reagan o6cials consider the civ-
ti rights policies a successi. both on their
merits and with the public. Attoraey
General Edwin Mecse has announced
that Reynolds wrll be his Associate Anor-
ney General, :he rhird-ranking official of
the Justice Depanment. Whrle rough
questioning awaic Reynolds ar his immi-
nent conf.rmadon hearings. he is expect-
ed to carry the day. As lor his replace-
ment. a leading conrender is Chartes
Cooper, 33. the divrsion's top depury. a
tbrmer cierk to Supreme Coun Jwtice
William Rehnquist. Many in rhe unhap-
py civil rights community consider Coo-
per more ideologrcally zeaious rhan even
Reynolds has been. -8y ttttd,Ef,,t S. *'7il[
nrybd by At E Curct*b/Washhryrm ad
Jadt L l+'h'to/Aicago

iorpldrl \fltrv rrt fry to bG ?.c. ad ru nud?

tlttdrut witfi lndanapolls firc fl glrters
Êvcryone was happy until the leds buned in.

58 TIME. VAY I]. I985