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One of the critical issues hanging fire in last year’s presidential election was judicial appointments. President Bush has not yet begun making nominations to fill the numerous vacancies on the bench, but he will soon — and perhaps the most important and controversial issue cluster for the judiciary will be civil rights. How important? Well, here are the top 10 civil rights issues that judges will likely decide over the next few years. � Is “diversity” a compelling governmental interest? This issue arises most prominently in the context of racial and ethnic preferences for college admissions. There is strong evidence — marshaled most recently in a study released on Feb. 22 by the Center for Equal Opportunity — that universities all over the country, whether selective or relatively unselective, give substantial preferences to African-American and, to a lesser extent, to Hispanic, applicants, over whites and Asians. The Supreme Court has made clear that any racial or ethnic classification by a public institution — or a private institution that gets federal money, which includes almost all universities — will be subjected to “strict scrutiny,” which in turn means that the school must point to a “compelling” interest for the discrimination. The interest most universities have relied on is “the attainment of a diverse student body,” to quote from Justice Lewis Powell Jr.’s opinion in Regents of the University of California v. Bakke (1978). But no other justice joined Powell’s endorsement of the diversity rationale, and the lower courts are now split. The diversity rationale and closely related variants have also been asserted by governmental actors, with varying success, to justify preferences in other contexts, such as employment and elementary and secondary education. � Are there nonremedial justifications for employment discrimination under Title VII of the Civil Rights Act of 1964? This statute contains what is, to the untrained eye, a categorical ban on discrimination. But, since United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987), the Supreme Court has allowed the use of employment preferences for minorities and women. The rationale for these preferences has generally been remedial: to counteract past discrimination. But employers, like college admission officers, might give other reasons for their discrimination, such as achieving a more diverse work force. The Supreme Court had agreed to confront this issue in 1997 when it granted certiorari in Piscataway Township Board of Education v. Taxman, but the case settled at the 11th hour. A consortium of civil rights organizations decided the Court might rule unfavorably, and so raised enough money to persuade the laid-off white schoolteacher to drop her claim. The issue has yet to return to the Court. � How demanding is the “narrow tailoring” prong of strict scrutiny? Merely articulating a “compelling” interest is not enough to pass strict scrutiny. Rather, the challenged racial or ethnic classification must also be “narrowly tailored” to that interest. But how tight does the fit have to be? There is language in some Supreme Court opinions to suggest that it must be tight indeed: essentially no other way to achieve the interest. But some of the lower courts have been much less demanding. � What is the definition of “business necessity” under the Civil Rights Act of 1991? Starting with its 1971 decision in Griggs v. Duke Power Co., the Supreme Court has allowed plaintiffs to bring and win Title VII employment discrimination cases without alleging or proving intentional discrimination. Instead, they need show only that a selection criterion has a disproportionate effect — disparate impact — on women or minorities, and then the burden shifts to the employer to prove a “business necessity” for the practice. This procedural sequence was codified in 1991 by Congress after the Supreme Court’s decision in Wards Cove Packing Co. v. Atonio (1989) ignited a legislative debate over such claims. But the legislation is less than clear regarding what, precisely, the defendant’s affirmative defense is. The statute says only that a defendant must “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” The lower courts have so far not done much to flesh out the standard in a sensible way. The issue is important because if it is difficult or impossible to show “business necessity,” then employers must either jettison reasonable standards or hire strictly by the numbers. � Can a disparate-impact cause of action be brought under the Age Discrimination in Employment Act and the Fair Housing Act? While the disparate-impact approach has been a part of Title VII for 30 years and is now written into the statute itself, the Supreme Court has never recognized this sort of claim under these two other important civil rights statutes. Indeed, the Court has expressly reserved the question — for the ADEA, in Hazen Paper Co. v. Biggins (1993), and for the FHA in Town of Huntington v. NAACP (1988) — and the lower courts are divided. � Are existing regulations under Title VI of the 1964 Civil Rights Act that ban disparate-impact discrimination valid? A number of Supreme Court decisions make clear that this statute — which prohibits racial and ethnic discrimination in federally funded programs and activities — bans only disparate treatment. Yet many federal agency regulations incorporate a disparate-impact approach as well. Some of the amici (including the Center for Equal Opportunity) in Alexander v. Sandoval, currently pending before the Supreme Court, urged the justices to strike down these regulations as outside the bounds of agency authority, but the Court seems unlikely to pursue the issue in this case. Its recent decisions, however, make the regulations vulnerable in the future to this line of attack. � Is the Americans With Disabilities Act unconstitutional? Congress cited two sources for its authority to pass the ADA: the commerce clause and Section 5 of the 14th Amendment. But there are problems with each. The effect of disability discrimination on interstate commerce is weak (especially for, say, prisons and funeral homes), and it is hard to argue that the ADA actually helps the economy (the Framers’ reason for giving Congress authority to regulate interstate commerce). And in its decision last month in Board of Trustees of the University of Alabama v. Garrett, the Court — in the 11th Amendment context — rejected Congress’ assertion of Section 5 authority in enacting the ADA. � How expensive can a “reasonable” accommodation be? The ADA requires employers and public accommodations like restaurants, hotels, stores, and so forth, to make “reasonable” accommodations for disabled employees and customers. But at what point do such accommodations become so expensive, or even dangerous, that they amount to an “undue hardship” (another undefined ADA term)? The Supreme Court has heard a number of ADA cases, but has not yet grappled with this issue, which lies at the statute’s heart. � When should a school district be declared unsegregated? There are hundreds of school districts that remain under court-ordered desegregation plans. The Supreme Court has made clear that these plans are not supposed to last forever, and that authority for running local schools is to be returned to the school boards once the district has achieved “unitary” — desegregated — status. But the devil is in the details. How long must the school board wait, and how flawless must its record be in following every particular of the Court’s plan? The answer to such questions recently split the judges on a 4th Circuit panel — all three of whom were Clinton appointees — and prompted an en banc reargument of the case Belk v. Charlotte-Mecklenburg Board of Education on Feb. 27. � Under what circumstances can a voting standard or procedure that has disproportionate racial “results” be justified? Section 2 of the Voting Rights Act of 1965 is a marvel of convolution. Like the Civil Rights Act of 1991, it was designed to codify a prohibition that reaches beyond simple intentional discrimination. But it is not clear how far beyond it reaches, especially in contexts other than redistricting. For instance, does it contemplate a claim — like one recently filed in Florida — that a state law disenfranchising felons is illegal if it can be shown that felons are disproportionately black? And, if so, can the state still prevail if it has a good enough reason for the law? This list does not exhaust unresolved civil rights issues. The precise legal limits on racial profiling and on private arbitration of employment discrimination claims, to give just two other examples, could be added. But I hope I’ve made my point: The judiciary continues to play an extremely important role in the civil rights arena. President Bush’s appointments to the bench will make a big difference in how some very basic and fundamental issues are resolved. Roger Clegg is general counsel of the Center for Equal Opportunity, a Washington, D.C.-based think tank whose Web site is www.ceousa.com. He can be reached at [email protected]

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