JIM LEHRER: This is the first Monday in October, always the first day of a new term of the U.S. Supreme Court. We look at the prospects and the possibilities of this term with NewsHour regular Stuart Taylor of Legal Times and The American Lawyer. Stuart, welcome.
STUART TAYLOR, The American Lawyer: Nice to be here.
JIM LEHRER: In general, what should we expect from this term?
STUART TAYLOR: The biggest cases on the horizon so far involve race, gender, and the complex of issues under the rubrics racial, affirmative action, racial preferences, and sexual harassment.
In particular, the civil rights groups I think are awaiting this term with trepidation because when you count the votes in past cases, they have a hard time being optimistic about two big cases: one which the court has already agreed to here involving two schoolteachers in New Jersey in which a white teacher was laid off ahead of a black teacher, who was deemed equally qualified, on the ground that diversity in the business education department of a high school was the goal to be pursued. And the court's going to review that. A lower court in that case held very broadly that any kind of racial preference could not be justified in employment if the only reason was diversity.
And there's a huge case from California coming that may be even more important that the court will probably decide whether or not to hear sometime in the next month or two, and even if they say we're not hearing it, even if all they say sert denied, it would be enormous.
JIM LEHRER: That's a big deal.
STUART TAYLOR: It would be a very big deal.
JIM LEHRER: I'll just go through those one at a time. The New Jersey case; give us the facts on that and where the matter rests as we speak.
STUART TAYLOR: Yes. In 1989 the Piscataway Township Board of Education had to lay off somebody to shrink its business education department in high school by one. There were I think ten white teachers and one black teacher. And the two least senior teachers were the black teacher and one of the white teachers; they evaluated--
JIM LEHRER: They were eight and nine, or nine and ten right on the list, too?
STUART TAYLOR: They'd been hired the same day. They were deemed--they had comparable performance evaluations. The school board decided there was no way to distinguish the two, but instead of a coin flip, which would have been the normal way they would do it. They said, well, we need diversity in this department; if we lay off the black teacher, they're going to be all white, therefore, we'll lay off the white teacher.
The white teacher, Sharon Taxman, sued, and won ultimately in the lower courts. Meanwhile, the Clinton administration--the U.S. Government, the Bush administration was on the white teacher's side, then switched to the black teacher's side in 1994 under the Clinton administration, and then switched back to the Supreme Court, and now they're on the white teacher's side again, although they're asking the court not too broadly.
JIM LEHRER: Now, if the court does rule broadly, what have we got?
STUART TAYLOR: If the court rules as broadly as the U.S. Court of Appeals to the First Circuit, as it would be a sweeping decision that would make it very difficult for any employer, public or private, to use a racial preference as a basis for diversifying its work force because the Third Circuit said you can't do that. And it would have a very widespread effect because this is a very common thing. It could even implicate the affirmative action that universities use in admission; however, I think that smart handicappers don't expect that broader ruling.
JIM LEHRER: Who are the smart handicappers? I mean, you and five others?
STUART TAYLOR: No. Well, I think the ACLU, for example, which is not optimistic--
JIM LEHRER: We can say you're a smart handicapper, Stuart. That was a sign of affection. Okay.
STUART TAYLOR: Civil rights groups are openly pessimists, and in the Clinton administration, which likes affirmative action, said the white teacher ought to win this case, but they've also argued to the Supreme Court this is not a good case in which to reach out and decide any broad issues. For example, suppose the city of Detroit says we really need some more black police officers downtown; it's a black population. They don't trust white police officers. We need to use some preferences. The Clinton administration says, you know, that sort of affirmative action ought to be protected. Don't sort of reach out and sweep everything away, or if, for example, there's a school that has no black teachers and no black students, maybe affirmative action there.
JIM LEHRER: So when would this be argued and when would it be decided?
STUART TAYLOR: It has not yet been scheduled for argument because they didn't agree to hear it until the last day of the last term in June. It will probably be argued in January or February and decided at the end of maybe next June or early July.
JIM LEHRER: Now, California has to do with the proposition, and it has--the court has yet to decide to take it. It's just been appealed, right?
STUART TAYLOR: Yes. But it's a very big issue looming on the docket because California, of course, being the largest state in the country by far, voted last November by 54 percent to 46 percent of the electorate to amend the state's constitution to say no racial preferences, period, in state programs involving education, employment are contracting. Now, hiring preferences, the University of California admissions preferences, no special contract, set-aside programs, nothing. And that is a far more sweeping wack at affirmative action than anything, even this rather anti-affirmative action the Supreme Court has ever done. The issue is whether that is unconstitutional.
JIM LEHRER: And the lower courts have held that that was constitutional, right, that the proposition is constitutional?
STUART TAYLOR: Actually, Federal District Judge Thelton Henderson, who's an old civil rights lawyer, himself, issued a preliminary injunction saying it's unconstitutional and stopped its enforcement. He was reversed by the U.S. Court of Appeals, and it is their decision that civil rights groups, led by the American Civil Liberties Union, are now hoping the Supreme Court will review.
JIM LEHRER: All right. Let's go through quickly some of the other--there's a sexual--a very unusual sexual harassment case. Tell us about that.
STUART TAYLOR: Yes. Basically, this was a bunch of men on an oil rig. There was no woman in sight, and one of the men complains and claims and the case is based on the supposition that this is true; that he was subjected to very crude sex-type harassment by people grabbing him in the shower and doing things to him that were very sexual. No one is alleged to be a homosexual in this, but it was more than the usual amount of horseplay that goes on in locker room in showers, at least by the standards of most locker rooms I've been in.
Now, the issue in the Supreme Court is whether he sued for sexual harassment. An issue in the Supreme Court is when it's all men and no women when the harasser and the harassee area both of the same sex, can you sue for sexual harassment? The lower court, U.S. Court of Appeals for the 5th Circuit, said no, same sex sexual harassment is not actionable under the civil rights laws. The Clinton administration in most civil rights groups, in most women's groups are asking the Supreme Court to reverse them because if they cut it off here, it would be a general narrowing of the direction sexual harassment law had been taking up until now at least.
JIM LEHRER: There's a lie detector case involving the use of lie detectors in criminal cases, which are now forbidden. What is the case?
STUART TAYLOR: It's a U.S. military case. A defendant named Edward Schefer was charged with a number of crimes, including going AWOL and using methamphetamines. He took a polygraph test administered by the Air Force and passed. And in the sense that it detected no deception, he said I have never taken--knowingly taken methamphetamines--and wanted to introduce it at his trial. The military rules of evidence say no polygraphs, period. And so he was not allowed to do so. The U.S. Court of Military Appeals said that that violates his 6th Amendment rights under the Constitution to present a full defense and said, in essence, that a defendant has a constitutional right to use a polygraph if it supports his innocence and if he can prove its scientific reliability. The Clinton Justice Department has asked the Supreme Court to reverse that and to uphold a general ban on polygraph tests.
JIM LEHRER: The court doesn't do that. That's a big decision, is it not? Wouldn't that open it to the use of the polygraph, period?
STUART TAYLOR: It certainly would. If the court rules for the service member here, all state courts would be open to polygraph evidence much to the dismay of the many people who think that polygraphs are unreliable and with unforeseeable consequences because if defendants can use them, then prosecutors are going to want to say we ought to be able to give them our own polygraph. That would raise Fifth Amendment right against self-incrimination issues, but the whole question of polygraphs and scientific evidence is becoming an increasing focus of judicial activity as a result of a few recent Supreme Court cases and also the polygraph has evolved quite a bit since the original rules against its admission were introduced.
JIM LEHRER: Finally, there's a case involving the First Amendment, political debates on public television, comes out of Arkansas, and, well, tell us the case.
STUART TAYLOR: It's the Arkansas Educational Television Commission vs. Ralph Forbes, and it's of huge interest not only to public television but to third party candidates, independent candidates, such as Ross Perot, has filed a friend of the court brief. This happened in 1992. There was a debate in the public television network in Arkansas, which has five state--five stations--is state-owned, invited the Republican and Democratic candidates. A fellow named Ralph Forbes, who is running as an independent and who qualified for the ballot by getting 2,000 signatures, said, hey, I want to get into this, the station said, he doesn't have a chance of winning, he's a distraction, didn't let him in. The issue for the Supreme Court is whether he had a First Amendment right because it was a government-owned television station.
JIM LEHRER: If it had been a--if it had been a commercial television network, or a commercial, that is not the issue because it was public television incident.
STUART TAYLOR: It raises the broader question of, well, if public television networks had a duty to let third party candidates or independent candidates into the debates, what about--what about a lot of other things in terms of duties they might have to give everyone in the community an equal voice.
JIM LEHRER: Quite a thicket. Yes. And there are many thickets to come, and we'll have you throughout this term, Stuart, to tell us what's going on, and why. Thank you very much.
STUART TAYLOR: Thank you.