The Court's Final Flurry

By Bennett H. Beach

Decisions on child pornography, busing, other thorny issues

The U.S. Supreme Court's expanding case load seems as tough to tame as the federal budget. Again this year it was the largest ever; the Justices heard arguments on 184 of the 5,178 cases appealed to them. And the overflowing judicial In boxes meant another flurry of decisions in the final weeks as the Justices just managed to meet their goal of recessing before the July 4 weekend. The 27 rulings handed down last week generally reflected the themes sounded throughout the term. In one decision, for example, a moderately retarded Pennsylvania woman was denied federal review of the state's termination of her parental rights over her three children. The ruling, as Yale Law Professor Paul Gewirtz points out, hewed to the clearest trend of the term: "limitation of access to federal courts." A new force pushing this movement was Sandra Day O'Connor. Says Gewirtz: "She came in with quite a clear agenda on this and other aspects of federalism. And she's not cautious; her decisions were quite bold for the first term."

Last week O'Connor also wrote a decision reaffirming the court's "heightened scrutiny" of sex discrimination cases; the opinion, which held that a state nursing school for women must admit men, was issued one day after the death of the ERA ratification drive. In another decision, the court ruled unanimously that the N.A.A.C.P. was not liable for damages as a result of a mostly peaceful boycott. The court decided to put off to next year ruling on a lawsuit challenging the right of a house of Congress to veto regulations issued by federal agencies. But, as detailed in the following report, the court in its closing week did take on child pornography, school busing, the death penalty and some other thorny issues.

Child Porn Crackdown. The most repellent form of pornography is that which displays children engaged in sexual acts or in lewd nude poses. When increased quantities of this material began appearing five or six years ago, legislators in 20 states enacted tough statutes banning the sale not only of obscene films and magazines portraying youthful sexual conduct, but of nonobscene ones as well. Bluntly put, the legislators wanted to crack down on dirty pictures of children even if the material involved was not "prurient" and "offensive" when judged by community standards. So when Manhattan Bookstore Owner Paul Ferber was sentenced in 1978 to 45 days in jail for selling two nonobscene films, he complained that his First Amendment right to free speech had been violated. Last week, with a unanimity that is rare on today's fractionated Supreme Court, the Justices handed down a landmark decision that encourages sweeping curbs on child pornography.

Over the years, no right has been defended by the court more vigorously than that of free speech. Yet exceptions have been carved out to allow limits in some areas, including incitement to riot, defamation and obscenity. Now there is one more: child pornography. Written descriptions of youthful sex remain covered by the normal obscenity standards. The court's new rule on children in pictures or live performances rests not on shielding the public from such material, but on the need to protect the children. Wrote Justice Byron White: "The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance."

The court cited numerous studies of the harm suffered by children who are forced or persuaded to perform sexually in front of a camera. Said White: "It has been found that sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions and have a tendency to become sexual abusers as adults." He also noted that a youngster is unable to prevent the invasion of his privacy that occurs each time the film or book is viewed. (No such invasion occurred at the court during consideration of this case; the Justices concluded that they could rule without studying Ferber's films.)

White acknowledged the risks to legitimate publications containing pictures of nude children and to other works that are pornographic only in isolated segments. "Yet we seriously doubt," he argued, that more than "a tiny fraction" of worthwhile materials would be involved. Not everyone shared the court's optimism on that score. Said Herald Price Fahringer, who represented Ferber: "This decision could inspire more censorship, and I find that alarming."

But critics who fear that medical texts and even National Geographic might be denied constitutional protection would be misreading the decision. And the use of teen-age models in suggestive ads would probably not be affected since there is no display of actual or simulated sex. Books like Show Me!, however, which uses explicit photographs to teach children about sex, might prompt prosecutions. In any event, the court made its point unflinchingly: it is willing to risk excesses of prosecution in order to stamp out the excesses of pornographers who exploit children.

On Busing: Stop and Go. Busing opponents, who in the past have attempted everything from marching to electing like-minded school-board members, have more recently gone on to try passing statewide referenda. But after two rulings by the court last week, that device may have a limited future. Although a California proposition was upheld, one in Washington State involving more important legal principles was thrown out.

The Washington dispute began in September 1978, when Seattle (pop. 493,000) became the largest U.S. city to bus students voluntarily for racial balance. Two months later 66% of the state's voters endorsed Initiative 350, which prohibited local school boards from requiring busing as a desegregation tool. Seattle school officials went to federal court and won the right to continue busing, which was proceeding peacefully. But opponents of their plan took the issue to the high bench and picked up the support of the Reagan Justice Department.

Writing for a five-man majority, Justice Harry Blackmun ruled that Initiative 350's narrow focus on school desegregation effectively denied minority groups the equal protection of the laws guaranteed by the 14th Amendment.

Blackmun noted that nonracial matters like hiring and curriculum remained under local control.

"The effect," he said, "was to redraw decision-making authority over racial matters--and only over racial matters--in such a way as to place comparative burdens on minorities."

Down in California, the case involved a Los Angeles busing plan ordered by a state court, not one adopted voluntarily as in Seattle. A 1979 antibusing referendum amended the state constitution to make it tougher for plaintiffs to win mandatory busing orders. California's constitution had required state judges to impose busing when necessary to cure school segregation even if it resulted from housing patterns that developed without any official intent to segregate. Federal law requires proof of official intent. When they approved Proposition 1, Californians essentially embraced the looser federal standard. By an 8-to-l vote, the Justices upheld that action. Wrote Justice Lewis Powell: "It would be paradoxical to conclude that by adopting the equal-protection clause of the 14th Amendment, the voters of the state thereby had violated it." Busing in the 711-sq.-mi. Los Angeles school district could be imposed yet again, but only in the unlikely event that plaintiffs can prove that the district intentionally segregated students.

Taken together, the two busing decisions represent the high court's first significant statement on the subject in three years, but their impact will be limited. After all, hardly any school boards voluntarily adopt busing plans as Seattle did, and there are few existing busing schemes based on state laws like California's repealed guarantees. Busing plans are still operating at the direction of federal courts in about 35 large cities, but not many new cases are pending. The Senate has passed, and the House is considering, legislation that would prevent federal courts from ordering a student to be bused more than five miles, or 15 min., to achieve desegregation. Whether such a law would be constitutional remains to be seen.

Foreclosed Mortgages. With interest rates at historic highs, millions of Americans have managed to buy homes only because the seller was able to pass along a version of the old low-interest mortgage with the house. But now it appears that assumable mortgages may go the way of the butler's pantry. By a 6-to-2 vote, the court upheld a 1976 federal regulation allowing federally chartered savings and loan associations to enforce due-on-sale clauses in their lending agreements. Such clauses require a seller to pay off his mortgage rather than transfer it to the new owner. California, like a number of other states, had sought to bar enforcement of these provisions by the federal S and Ls. But the Constitution's supremacy clause, said the court, gives federal law precedence over conflicting state law. Federal S and Ls hold a quarter of home mortgages nationwide, and other S and Ls are threatening to seek easily obtainable federal charters if their state legislatures refuse to okay due-on-sale clauses for them. In the battered thrift industry, the decision is a welcome break that will prevent substantial losses. More important, improved cash flow for S and Ls should increase the amount of mortgage money available and eventually maybe even lower interest rates a bit. Mortgages from fed eral S and Ls that were passed along with their consent before the court's decision probably cannot be called in, and the decision does not apply to commercial banks or other lenders. But for many home buyers and sellers in the immediate future, one of the few ways to escape crushing interest rates is gone.

A New Death Exception. Earl Enmund, now 50, was waiting anxiously at the wheel of the getaway car in 1975 when his accomplices got into a gun battle and killed an elderly couple they were robbing near Wauchula, Fla. His partners might be liable to the death penalty in Florida, but could Enmund be? Because he helped out in the robbery, Florida law held him responsible for the killing by his partners, and he was sentenced to death. His lawyers argued, however, that capital punishment for an accomplice who was not at all involved in the shooting violated the Eighth Amendment's stricture against "cruel and unusual punishments."

By a 5-to-4 vote, the court agreed.

"Enmund did not kill or intend to kill," said Justice Byron White for the majority. "We have the abiding conviction that the death penalty ... is an excessive penalty for the robber who, as such, does not take human life." The ruling pleased opponents of capital punishment, though it will probably not affect more than a handful of the 1,038 inmates now on the nation's death rows.

Less Handicapped Help. A 1975 U.S. law obliges federally assisted local schools to offer handicapped children a "free appropriate public education." But what does that mean? Confounded by the statute's 58-word definition, the court examined the legislation's evolution and concluded that the key words mean only that the handicapped must receive instruction from which they can derive "some educational benefit." Wrote Justice William Rehnquist for the majority: "The intent of the Act was more to open the door of public education . .. than to guarantee any particular level of education once inside." He expressly rejected a lower court's insistence that a student be given aid enough.to "maximize [his] potential."

For Amy Rowley, a deaf girl about to enter fifth grade in Peekskill, N.Y., the 6-to-3 ruling means that she will not get the $15,000-a-year sign language interpreter she sought. Rehnquist noted that even without such help, the youngster reads lips well enough and has sufficient assistance to do above-average work. For the more than 4 million other children protected by the 1975 law, the ramifications are unclear. Their advocates are generally relieved that the court left intact the statute's fundamental safeguards. They are fearful, however, that the decision's language leaves room for backsliding by local school officials, who spend $3,000 on the average handicapped student (compared with $1,500 for others) and who are anything but deaf to the cries of hard-pressed local taxpayers. --By Bennett H. Beach

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