TIME: Almanac 1993/TIME Almanac 1993.iso/time/012290/0122110.000

Text File | 1992-08-28 | 5.8 KB | 126 lines

                                                                                LAW, Page 53

A Controversial Quartet


The court tackles tenure, sex, housing and criminal law


    When the University of Pennsylvania denied tenure to Rosalie
Tung in 1985, the Chinese-American business professor decided
to put up a fight. Charging discrimination on the basis of sex
and race, Tung asked the federal Equal Employment Opportunity
Commission to investigate. But the university turned down the
agency's request to see the peer-review letters that contained
evaluations of Tung's performance by her colleagues. Last week
the U.S. Supreme Court bluntly told the university to hand over
the documents. The decision was one of a quartet of major
rulings from the high bench, which also touched on pornography,
housing discrimination and criminal law.

    In the Tung case, the university insisted that releasing the
materials would encroach on academic freedom and undermine the
confidentiality that is the backbone of the tenure system. The
court dismissed that argument and gave the EEOC broad power to
obtain tenure documents. Wrote Justice Harry Blackmun: "The
costs associated with racial and sexual discrimination in
institutions of higher learning are very substantial . . .
Ferreting out this kind of invidious discrimination is a great
if not compelling governmental interest."

    Many college administrators were critical of the ruling.
Said David Markowitz of the American Council on Education:
"There will be fewer people willing to take part in peer
reviews. The court is asking people to submit themselves to
possible punishment for being candid." But Tung, who now
teaches at the University of Wisconsin, saw things differently.
"If people make an objective evaluation of a candidate's work,"
she said, "they have nothing to fear."

    Last week's other major rulings:


    Pornography. As in last year's controversial flag-burning
decision, the Justices upheld the First Amendment guarantees
for individuals espousing an unpopular cause -- this time, the
right to peddle pornography. Reviewing an appeal from Dallas,
the high bench refused to strip sexually oriented businesses
of important constitutional protections. By a 6-to-3 vote, the
court struck down the licensing portion of a 1986 city
ordinance that strictly regulated adult bookstores and movie
houses through zoning, licensing and inspection requirements.
While endorsing the law's attempt to root out the urban blight
and crime associated with such enterprises, the court concluded
that the licensing scheme amounted to an unconstitutional
"prior restraint" on speech because it did not impose a time
limit for acting on applications and did not provide for prompt
judicial review. However, the court unanimously upheld the
Dallas ordinance as it applies to "hot sheet" sex motels.

    First Amendment experts generally cheered the Dallas ruling.
"Over and over, the court has said that licensing standards
must be crystal clear," explained University of Michigan law
professor Frederick Schauer. "This is a quite proper
application of the court's long-held distrust of official
discretion." Conservative court commentator Bruce Fein
disagreed, charging that "the high court is doing a pirouette
around obscenity laws."


    Housing discrimination. Stepping into a bitter racial and
political imbroglio involving Yonkers, N.Y., the Supreme Court
last week slapped federal District Judge Leonard Sand on the
wrist for an "abuse" of judicial discretion. Following years
of municipal obstructionism and a refusal by the city to carry
out a housing-desegregation decree to which it had earlier
consented, Sand in 1988 ordered Yonkers council members to vote
for the plan. When four legislators disobeyed, the judge
imposed potentially crushing contempt fines on them and the
city. Last week, in a 5-to-4 vote, the court ruled that Sand
should not have fined the council members until he was certain
that the fines against the city alone would not force
compliance. Wrote Chief Justice William Rehnquist: "The
imposition of sanctions on individual legislators is designed
to cause them to vote, not with a view to the interest of their
constituents or of the city, but with a view solely to their
own personal interests."

    Civil rights advocates were dismayed at the decision, which
they saw as another attempt to water down legal remedies
against inequality. "This case may encourage unwarranted
defiance of judicial authority in civil rights matters,"
observed Harvard University law professor Laurence Tribe. Added
Cornell University law professor Steven Shiffrin: "There is no
place for deference to the legislative process when it does not
act in good faith." But Peter Chema, one of the targeted
Yonkers council members, was jubilant. "This is a democracy,"
he declared, "and an elected official's vote is sacred."


    Criminal rights. The Justices refused to carve out another
exception to the so-called exclusionary rule. This principle
generally forbids prosecutors to prove their case with evidence
obtained illegally from a defendant. The court has long made
an exception in cases in which the defendant takes the stand,
by allowing the use of tainted evidence to attack his
credibility. But last week the Justices refused to permit such
evidence to impeach the credibility of a witness testifying in
support of a Chicago murder defendant. The ruling left some
experts scratching their heads and anticipating future criminal
cases because the fifth and deciding vote came from Justice
Byron White, normally one of the staunchest judicial critics
of the exclusionary rule.


By Alain L. Sanders. Reported by Jerome Cramer/Washington and
Andrea Sachs/New York.