David Cole’s July 21/28 “Court-Watching” offers a welcome corrective to the overly enthusiastic reactions to the Supreme Court’s decisions last term. Even Cole, however, has understated the limits of these rulings. Two of several examples:
The Family and Medical Leave Act case did not signal a change in direction in the Court’s assault on the national government. The act was aimed at discrimination against women, and the Court has always been very strong in this area. In an earlier case, Rehnquist, who wrote the Family Leave Act decision, had already suggested that laws to protect racial minorities and women might be more constitutionally acceptable than laws protecting others. Moreover, he has not been uniformly hostile to women in discrimination cases involving them–he voted with the majority to force VMI to accept women (and although he did vote against the Violence Against Women Act, that was based on an interpretation of the Fourteenth Amendment in general).
The affirmative-action cases do little to make educational affirmative action more acceptable to the courts than it is now; they merely keep the status quo. In the law school case, the Court allowed race to continue to be considered in order to achieve educational diversity, reaffirming the 1978 Bakke case. This was obviously a great victory in light of the current attacks on diversity. But in the college case they made it very difficult to use point scores, and insisted on individualized decision-making. This may be feasible for colleges, but it is impossible for elementary and secondary schools. Children haven’t done much at these young ages, even at the high school entry level, except to get grades. While avoiding the diversity issue, federal judges have struck down affirmative-action plans for magnet schools in the Washington area, at the Boston Latin School and elsewhere as not sufficiently “narrowly tailored.” These schools will not be helped by the Court’s rulings, which will continue to make even a limited amount of elementary and secondary school desegregation very difficult.
Thanks to Alexander Cockburn for his column on homegrown nuclear perils [“Beat the Devil,” July 21/28]. I wrote one of the vulnerability studies he refers to, on Progress Energy’s Shearon Harris nuclear plant near Raleigh, North Carolina (www.ncwarn.org/Risk_Reduction/Reports/SecurityReport.pdf).
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