ELIZABETH FARNSWORTH: You were at the Supreme Court today. Can you summarize the arguments for us?
STUART TAYLOR: Yes. Deputy Solicitor General Paul Bender led off for the Justice Department, and he stressed that VMI’s unique adversative-style education, that’s the buzz word which is kind of the boot camp approach of being abused and harassed by upperclassmen, is a valuable asset and that the VMI degree is a valuable asset to those men who go there, particularly because it’s a very prestigious institution with a loyal alumni body that channels people into successful careers.
He said that there’s no reason women should be denied the benefit of that sort of education; that there are some women who can hack it at a place like VMI, in the records yes, there are some, and that they ought to have that opportunity. He also claims that the arguments VMI has made and the Mary Baldwin people have made for the solution of keeping them in separate places depended on outmoded stereotypes, basically depended on the idea that there are some things women can’t handle, and this is one of them, and that the only remedy, in his view, is to integrate VMI. He says that the Mary Baldwin institution 35 miles down the road is not equal, is not the same, is not as good in, in various ways.
ELIZABETH FARNSWORTH: How about the opposing side?
The whiff of censorship is in the air at the Harvard Law School. Look for a push by the faculty’s left wing this fall to adopt a campus speech/"harassment" code-one of those affirmative-action models aimed at punishing insensitivity toward women and minorities while smiling on the stigmatization of white males.
And look for more demands for appointment of a faculty-student committee-selected by racial and sexual quota-to investigate the "atmosphere" for signs of a "hostile environment."
The stage has been set by the widely publicized outcry this spring over the unfortunate scribblings of two student members of the Harvard Law Review. A sampling of the reaction;
• An open letter by "15 faculty members including liberal luminary Laurence Tribe declared the article a symptom of a law-school environment "seriously hostile to women" and pervaded by "institutional sexism and misogyny," especially in its hiring practices.
• Professor Elizabeth Bartholet added that the "incident and the charges of related matters involving treatment of women … involve conduct that is arguably illegal under federal and state civil rights law governing sex discrimination and sexual harassment," and "possibly tortious."
• Professor David Kennedy pressed the law school’s administrative board to bring formal discipline against the offending students because their actions-"lie … at the point where sexual harassment verges into assault," and involve "a terrorization of women general and feminist women in particular"-even "a direct threat of personal violence."
This outpouring of learned nonsense was provoked by students engaging in what used to be called pure speech: the publication of a parody.
With President Bush excoriating House Democrats for passing a "quota bill"-and being savaged in return for fanning racial divisions-the rancorous debate over how much to expand job-discrimination remedies threatens to do race relations more harm than any law could cure.
But even as the opposing partisans have descended deeper into oversimplification and name calling, the real gap between their proposals has narrowed.
For the good of the country, it is imperative to bridge the gap and to get this issue behind us. A replay of last year’s Bush veto of a Democratic civil-rights bill would only suffuse the 1992 campaign with the poison of racial politics.
It should now be possible to come up with a statesmanlike compromise between the mainly Democratic bill that the House passed last week. 273-158. and the Bush administration’s competing proposal.
Statesmanship has been in short supply among the contending partisans-President Bush and the Democrats alike-as they have grappled for rhetorical advantage and the political high ground.
But Sen. John Danforth (R-Mo.) threw a glimmer of hope into this disturbing picture last week, by rounding up eight other moderate Republicans to sponsor a three-bill package that draws from both the president’s and the Democrats bills and seeks to bridge their differences.
Danforth says he acted out of a conviction that "it’s important to extricate the racial question from partisan politics." He would judiciously expand remedies for victims of job discrimination while seeking to avoid undue pressure on employers to adopt surreptitious quotas.
Danforth’s approach would improve both on current law, which the Supreme Court in 1989 tilted against job-discrimination plaintiffs, and on the House-passed bill, which would go too far in the opposite direction.
There is much of value in the omnibus bill unveiled last week by a bipartisan congressional coalition and leading civil-rights groups to reverse several major Supreme Court decisions last year. But the bill needs some amending.
The remedies available to victims of intentional job discrimination under current law are plainly inadequate. That was made clear by the Court’s decision last June in Patterson v. McLean Credit Union, which denied any legal redress to victims of even the most outrageous racial harassment in the workplace.
The proposed Civil Rights Act of 1990, co-sponsored by 34 senators and 123 House members, would rectify this by giving the full range of compensatory and punitive damages to victims of intentional job discrimination.
It’s sad that the Bush administration’s more limited proposal-to improve monetary redress only in cases of intentional racial discrimination-comes so late, in an apparent effort to pre-empt the congressional bill.
But methinks the champions of that bill protest too much when they insist, in the words of the Leadership Conference on Civil Rights, that it "has nothing to do with quotas or any other affirmative-action remedy."
If enacted and enforced as written, the bill’s disparate-impact provisions would create a powerful presumption that any employer with a workforce in which minorities were significantly underrepresented was guilty of racial discrimination.
The bill would also make the burden of overcoming this presumption so heavy that it could pressure employers surreptitiously to use quotas to improve their statistics-hiring and promoting racial minority-group members or women, as the case may be, on a preferential basis over equally or better qualified white males.