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WASHINGTON — In his first major speech as attorney general, Eric Holder tried to spur a conversation on race by bluntly describing America as "essentially a nation of cowards" and saying people "simply do not talk enough with each other about race."
Two months later, the issue of race is squarely before the Supreme Court, which begins hearing this week four cases that could dramatically alter the landscape of civil rights law. The cases also could provide a revealing look at how the administration of the nation's first African-American president will address racial matters before the Supreme Court, led by conservative Chief Justice John Roberts.

The disputes come to the high court just months after the election of Barack Obama as president and the confirmation of Holder as the nation's first black attorney general. They also arise at a time when a majority of the nine justices have signaled they want to end government policies that favor racial minorities to remedy past bias or enhance diversity.

The cases encompass fundamental issues — voting rights, employment, housing and education — and will test the court's stance on civil rights more comprehensively than at any time in the past decade. Their outcomes will determine, for example, the Justice Department's authority to screen state election policies that might hurt minority candidates.

The justices also will examine the validity of tests that don't seem to discriminate against minorities, including written exams or strength requirements, but that end up disproportionately disqualifying minorities from jobs or promotions.



The new president is partly a reflection of the legacy of voting rights laws that help to ensure participation by minorities in the electoral process. And yet, his victory is fueling arguments before the Supreme Court that some voting rights protections aren't necessary anymore.

His "historic election … stands as a remarkable testament to the tremendous progress this country has made in terms of racial equality and voting," says the conservative Pacific Legal Foundation.

The foundation has signed one of six "friend of the court" briefs siding with a Texas utility district's challenge to Congress' 2006 renewal of the 1965 Voting Rights Act. The landmark law sought to end discrimination at the polls, in part by giving the U.S. Justice Department the power to oversee election laws in parts of the country with a history of bias.

Civil rights advocates, among the groups signing 18 such briefs on the other side, are battling any potential decrease in enforcement of federal civil rights laws, from those that protect voting rights to those that shield minorities from even indirect discrimination in the workplace.

"We still have a lot of work to do," says John Payton, president of the NAACP Legal Defense and Educational Fund, arguing the 2008 election that vaulted Obama to the presidency also included situations in which some black voters faced intimidation at the polls.

The Supreme Court has been deeply split over how to respond to racial disputes. Since the addition of Roberts in 2005 and Justice Samuel Alito in 2006, it has grown more resistant to policies intended to benefit minorities as a group.

Roberts wrote in a 2007 decision throwing out school integration plans in Seattle and the Louisville area that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The plans considered race in students' school assignments for district diversity.

A year earlier, in a voting-rights case, Roberts referred to "a sordid business, this divvying us up by race."

Justice Anthony Kennedy, a 1988 appointee of Ronald Reagan, has become the swing vote in this area. Kennedy generally opposes government policies that take account of an individual's race, either in the workplace or in schools. He has tried to chart a middle course. In 2007, he voted with the four more conservative justices to strike down school integration plans but objected to "an all-too-unyielding insistence that race cannot be a factor" in achieving diversity.

A measured approach

When Holder issued his call to arms on race in February as part of National Black History Month, he addressed recurring battles over race and broader realities of American life. He said blacks and whites still stick too much to their own, especially in their social lives. "(T)he year 2009 does not, in some ways, differ significantly from the country that existed some 50 years ago," he said. "This is truly sad."

Holder said discussions about race often disintegrate into finger-pointing and simplistic labels. "This debate can and should be nuanced, principled and spirited. But the conversation … is too often … left to those on the extremes who are not hesitant to use these issues to advance nothing more than their own, narrow self-interest."

His words — particularly his "nation of cowards" phrase — inspired a flood of political commentary on newspaper pages and cable TV.

Obama later told The New York Times: "I think it's fair to say that if I had been advising my attorney general, we would have used different language." Yet Obama said he agreed that people tend to shy from talking about race "until there's some sort of racial flare-up."

The administration's responses in the pending Supreme Court cases are more reflective of Obama's careful approach than the fiery rhetoric of Holder's speech.

An example is the administration's filing in a Connecticut case brought by 18 firefighters — 17 white and one Hispanic — who sued New Haven city officials for throwing out the results of a civil service exam for fire department promotions when blacks scored disproportionately low.

Justice Department lawyers say the city acted properly to avoid violating the 1964 Civil Rights Act, which restricts tests that don't appear to discriminate but have a disproportionate racial impact. Yet, the Justice Department also says the case should be sent back for more fact-finding. It says the white firefighters' claims that they were intentionally discriminated against when the results were thrown out were not fully aired in lower courts.

"They wrote a very careful brief," says Michael Rosman, general counsel for the Washington, D.C.-based Center for Individual Rights, siding with the white firefighters. He predicts the administration will "take a case-by-case approach. They know the audience to whom they are speaking. They don't want to get slapped down by this Supreme Court."

Yale law professor Drew Days, a former U.S. solicitor general in the Clinton years and assistant attorney general for civil rights during the Carter administration, agrees the administration has tried to finesse its position in the firefighters' dispute, which could affect many public employers.

"There has been a kind of a push-back on the court with issues dealing with race," he adds. "But we have not dealt with all the problems that have to do with race, particularly in the electoral process." Days is one of seven former assistant attorneys general for civil rights from both Democratic and Republican administrations who urged the justices to uphold federal oversight on voting rights law.

'Reverse' discrimination

The two biggest race-related cases this term involve voting rights and claims of "reverse" discrimination:

• New Haven firefighters (to be heard Wednesday). No blacks and only two Hispanic applicants qualified for promotions based on their scores on exams that combined written and oral questions. The New Haven Civil Service Board, fearing bias lawsuits, set aside the test results and canceled the promotions.

Frank Ricci, the white lead challenger in the firefighters' lawsuit, says in court filings that he overcame dyslexia and paid to convert study materials to audio recordings to prepare for the test. His lawyers say canceling the promotions because of how blacks fared amounts to "overt racial balancing, de facto quotas and blunt race politics in government hiring."

New Haven Mayor John DeStefano and other city officials say they wanted to avoid claims of indirect discrimination against minorities.

• Voting rights (to be heard April 29). This case arises from Congress' 2006 extension of the Voting Rights Act. A provision requires nine mostly Southern states with a history of voting bias to get Justice Department approval when they change election-related laws. President George W. Bush signed the law, and his administration defended it before a lower court, which upheld it.

The Texas challengers, citing Obama's election, claim in their brief that the nation has changed so dramatically since 1965 that Congress lacks the authority to require the Justice Department's involvement in state and local elections. If individual voters do face bias, the challengers say, they can sue. "Such voting discrimination as remains is isolated in time and place," they say.

Justice Department lawyers say congressional hearings before the law's passage showed ongoing discrimination against minority voters. In one 2000 incident related at the hearings, a campaign worker for a black candidate in Wharton County, Texas, had her home set on fire.

The other two related cases involve English instruction in Arizona border schools (which the court heard Monday) and lending practices for home mortgages (to be heard April 28).

The English case from Nogales, Ariz., tests how far federal judges can go in directing state spending to public schools that might not be giving enough help to students who don't speak English. The Obama administration is siding with the students and their families who want the Supreme Court to uphold federal judges' authority in this dispute. In oral arguments Monday, the justices appeared closely divided over how far judges can go.

In the fair-lending dispute, New York Attorney General Andrew Cuomo found that banks in his state offered more high-interest loans to African-American and Hispanic borrowers than to whites. Cuomo sought more information from the banks, but the U.S. Comptroller of the Currency and a consortium of national banks sued, saying federal regulators have exclusive authority to look into and regulate lending activities.

The justices' combined rulings in these cases could recast federal civil rights law.

Kennedy is key

Of the nine Supreme Court justices, four have made clear they believe there is still a need for government policies that take race into account: John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. The four dissented in 2007 when the majority rejected school integration plans, saying the promise of Brown v. Board of Education to end segregation in public schools had been betrayed.

"It is my firm conviction that no member of the court I joined in 1975 would have agreed with today's decision," Stevens, the most senior of the liberal justices, wrote at the time.

The four justices who most consistently oppose government policies that consider race are Roberts, Alito, Antonin Scalia and Clarence Thomas. The latter two are most forceful in rejecting any group-based remedies for race discrimination.

Thomas, currently the only African American on the court, repeatedly has emphasized the stigma of programs intended to benefit blacks as a group, finding them as pernicious as Jim Crow laws. "If our history has taught us anything, it has taught us to beware of elites bearing racial theories," he wrote in the 2007 school case.

In the new disputes, Kennedy's pivotal vote could lead to the kind of incremental moves he has embraced in the past rather than an end to race-based programs.

"I'm not sure they're ready to make a big turn," says Rosman, of the Center for Individual Rights, which generally opposes racial policies, "because a big turn would rely on Kennedy. But I don't think he's ready to join Justice Thomas' club."


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