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Burden of Proof

Is Affirmative Action in Education Dead?

Aired March 28, 2001 - 12:30 p.m. ET


ROGER COSSACK, HOST: Today on BURDEN OF PROOF, is affirmative action in education dead? A federal judge says the University of Michigan has been violating the 1964 Civil Rights Act and orders its law school to stop considering race in its admissions.


MIRANDA MASSIE, ATTORNEY: Black, Latino, and Native American students have faced a baseless and racist stigma of intellectual inferiority since the dawn of this nation. Now affirmative action has helped to break down those disgusting and backward and unacceptable ideas.



CURT LEVEY, CENTER FOR INDIVIDUAL RIGHTS: The judge really went beyond even what we had hoped for. Not only did he say that diversity could not justify racial preferences, but he said that even if it did, the law school's racial preferences would still be unconstitutional.


ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: Hello, and welcome to BURDEN OF PROOF.

Yesterday in Detroit, a U.S. District Court judge ordered the University of Michigan's law school to stop using race as a factor in its admissions decisions. But that ruling conflicts with an earlier court decision.

Judge Bernard A. Friedman concluded that the practice violated Title VI of the Civil Rights Act of 1964, and that using race as a justification for admissions decisions is not a compelling state interest. Michigan's law school policy was adopted nine years ago, and is designed to increase minority enrollment for the purpose of better education for all students.

But a white woman who applied to the school sued, claiming her application was rejected because the university gave preferences to minority applicants. (BEGIN VIDEO CLIP)

BARBARA GRUTTER, SUED UNIVERSITY OF MICHIGAN LAW SCHOOL: I was discriminated against because there was different criteria applied to my application in the admission process than was applied to members of another race.


COSSACK: Tuesday's law school ruling conflicts with another federal judge's ruling last December, which applies to the University of Michigan's undergraduate admissions practices. Joining us today from Detroit is Godfrey Dillard, who is the counsel for Minority Interveners in these cases. Here in Washington: Jackie Brown, John Payton, who was the lead trial counsel for the University of Michigan, and Curt Levey, director of legal and public affairs at the center for individual rights.

And in the back: Eileen Ayala (ph) and Steven Bentz (ph).

John, I want to start right with you. The judge yesterday said that there's been a long and tragic history of race discrimination in this country. But he went on to say that even if the law school's goal of achieving a racially diverse student body is not compelling state interest, and even if it were, the school has not narrowly tailored its use of race to achieve the goal.

What exactly does that mean for affirmative action? It seems to me that what this judge is saying is the Bakke decision, which was the prior decision, says that race can be a factor, but you can't set up quotas. And I think what he said was the University of Michigan law school set up quotas.

JOHN PAYTON, LEAD TRIAL COUNSEL, UNIVERSITY OF MICHIGAN: Actually, what he said was he disagrees with the Bakke decision. And he finds that it has no controlling legal significance for the purposes of how he viewed this case. We think he's simply plainly wrong.

The other judge you mentioned, Judge Duggan, ruled in the undergraduate case -- found Bakke to have continuing validity, and upheld essentially the exact same arguments that we made.

We do exactly what the Bakke court said was authorized when it cited the Harvard University admissions policy. We cannot be distinguished from that. If Judge Friedman is wrong about Bakke, he's wrong about how we came out in this case.

The surprising thing is that we are increasingly a vastly diverse country, more diverse than we have ever been before. And now we are conscious of it. And as we are becoming so diverse, how strange to now have so much resistance to having diverse student bodies where everyone agrees, both judges, even the plaintiffs, even Mr. Levey, that having a racially and ethnically diverse student body has tremendous educational value. COSSACK: I don't think, John, that anyone is going to argue that point with you. I think the argument, if I might -- and I will turn to Mr. Levey to let him speak for himself. But I think the argument will be from the other side is how do you do this in a constitutional way that doesn't violate the constitution?

And I think that the notion of achieving diversity is high goal. The question how you do it constitutionally I think is perhaps where the center has an issue.

Go ahead, Curt.

LEVEY: Exactly. The Supreme Court has really only okayed one compelling interest that justifies racial preferences. And that's remedying your own past discrimination. There was only one out of nine justices in Bakke that talked about diversity. Four more justices joined parts of his opinion but explicitly didn't join the Bakke talk about diversity.

So you don't are the Supreme Court in Bakke upholding the diversity rationale. You have one justice. And that's why Judge Friedman in this case did not consider the one justice's opinion binding.

The reason that we don't allow many different compelling interests to justify racial preferences is because we want to in this country have a very high barrier to racial discrimination. Racial discrimination is so hostile to the American way that we want to make it extremely difficult.

And if we start saying that every laudable goal you can come up with is a justification for racial discrimination, we have weakened that barrier. And we are hurting all Americans, especially minorities.

COSSACK: Godfrey, I want to turn to you and ask you your position on this. Let me give you a hypothetical. I don't think there's anyone who is going to argue that the notion of being inclusive in this country and giving all people more of an opportunity is a bad idea. The question now becomes how do you do this and get over the constitutional barrier?

GODFREY DILLARD, COUNSEL, MINORITY INTERVENERS: Well, I think in representing minorities, we have a different position. We take the position that the race-based admission program at the University of Michigan is constitutionally based on the fact there's a history of discrimination at the university, and that there's present and ongoing discrimination at the university.

We believe that the admission program at the University of Michigan is relatively a mild program. It provides some incentives to ensure that there's adequate numbers of minorities in the university.

One of the problems in this particular case is that there's quite a few white preferences at the University of Michigan, which there's no focus on. It is our opinion that these white preferences need to be looked at as well.

The simple fact focusing in on so-called black incentives to the exclusion of the white incentives at the university is misplaced. For example, we did a study on the undergraduate case. And if you use our opponent's classic argument that the most objective way to evaluate a student is grade point average and standardized test scores, our regression analysis showed that over 42 percent of the students who got in at the University of Michigan with a lesser grade point standardized test score than the plaintiff were in fact white.

And the reason why that happened, that was close to 1,400 white students got in with a lesser grade point, standardized test score. So the reason why the plaintiff got in was not because they gave some points to minorities even regardless of the point to minorities...

COSSACK: Godfrey, let me just -- to sum up, what your position would be, if I could, is that you would say that in fact your argument is correct because under Bakke you are redressing existing discrimination that is going on at the university right now rather than perhaps the argument that it's just better to have diversified students.

DILLARD: Well, no, our argument is on a distinct constitutional basis, namely the eradication of discrimination. I think Mr. Levey made reference to that. But that is clearly a recognized compelling state interest in our law.

And what we are arguing is not that we object to the argument of diversity, but we're also arguing that this race-based program at Michigan is constitutionally based because there's discrimination at the University of Michigan.

COSSACK: All right. Let's take a break.

When we come back, let's find out what evidence was presented to the judge to convince him one way or the other that in fact diversity is necessary in the University of Michigan or in fact discrimination now exists. Stay with us.


COSSACK: We are back. And we are discussing affirmative action. Yesterday, a court in Detroit held that the affirmative action policy at the University of Michigan Law School was unconstitutional.

John, I think all of us have now laid out our positions in this case. I think it's now time to get to a little response. I know you were waiting to talk to what Curt had to say. Please go ahead.

PAYTON: You know, they're arguing about what Bakke means. We will argue about that in the 6th Circuit. And I think everyone appreciated that both of these cases weren't going to stop at the District Court. They're going to end up in the 6th circuit, maybe in the Supreme Court.

But I can say this with complete certainty. When Bakke came down in 1978, every college and university that reviewed that opinion quickly came to the conclusion that it authorized the Harvard plan. And that's why hundreds and hundreds of colleges and law schools in fact took Bakke to mean that diversity in the student body was a compelling educational interest that justified taking race into account.

We have a key that have filed friend of the court briefs on behalf of hundreds and hundreds of law schools and colleges. I don't think there's any question what Bakke was understood to mean 23 years ago. Bakke...

LEVEY: But the judge said you don't even comply with that. The judge said even if Powell was right, you're still not narrowly tailored what you have at the law school is virtually a quota, he said. And you didn't even look at less discriminatory alternatives to achieving diversity.

PAYTON: He's wrong about both those things. His reasoning goes something like this. Because we use race to achieve a critical mass of minority students in our student body, which is exactly what Bakke says you can do, but because we use race to get a critical mass, that constitutes a quota.

That simply can't be right if Bakke is still the law. Bakke is still the law. No one has ever shown us any aspect of our admissions policy at the law school that differs in any material way from the Harvard plan that was authorized in the Bakke opinion.

LEVEY: The judge showed you yesterday.

PAYTON: No, he didn't, actually.

COSSACK: What did the judge say then?

PAYTON: The judge said that there were a number of reasons why their plan does not follow the type of plan that Justice Powell talked about. And...

COSSACK: Let's stop for one second and just let me get -- so I can tell our viewers about 10 seconds worth of what the Harvard plan is. The Harvard plan is when the admissions officer and several other members of the law school sit around and have a long discussion regarding each individual applicant, not only what the race may be, but what this applicant may add to the student body, and takes it on in a case by case basis. That's the Harvard plan.

Now what was wrong with what you said...


PAYTON: We, in fact, make decisions, folder by folder, whole student by whole student. We take race and a whole range of other factors into account.

COSSACK: Let me just ask you this. If in fact that's true, is that what Bakke stands for, that if you follow the Harvard plan you are OK?

LEVEY: No, that's what Justice Powell's opinion stands for. And John is right. We can argue about whether Justice Powell's decision should or should not be considered the holding of the court. We believe since it was only one justice it shouldn't be.

But the important thing in this case is...

COSSACK: Godfrey, I'm going to give you a chance in a second.

LEVEY: ... Again, the important thing here, as Judge Friedman said, they don't -- they're not aimed at achieving a broad type of diversity like Powell talked about. They're aimed at achieving a balancing of skin colors. And they have a quota. They aim for between 11 and 17 percent of minorities.

And they did not even bother to look at the many other ways to achieve diversity, such as aggressive recruiting, such as basing preferences on socioeconomic disadvantages.

COSSACK: All right, let me give Godfrey a chance to get in here. Godfrey, go ahead.

DILLARD: Well, Roger, as you can see, there's quite a bit of debate over the constitutionality of diversity. We in minority community, however, would like to focus in on long tested and established constitutional basis for race-based remedy, namely the existence of discrimination.

We believe in both of these cases if you look at them together we put on a very strong case for discrimination. We've documented historically the over 100-year history exclusion of people of color from the University of Michigan. We have documented evidence present discrimination on the campus. We've had incidents where minority students are required to wear name bands for variety of social events on bogus terms.

COSSACK: Godfrey, I'm going to agree with you and ask you this question. Assuming what you are saying is 100 percent right, can you remedy the situation under the way the University of Michigan attempted to remedy it and not get into this notion of they're establishing a quota to remedy the situation, which may not be constitutional?

DILLARD: Well, I would like for them to eliminate white-based preferences in the admission program. I think that's where we need to stop. We need to stop giving preferences for nonacademic bases.

For example, they give points for alumni. They give points for select and highly sophisticated high schools. They give points for geography. All of these various different preferences that they give are basically to benefit white students.

COSSACK: But wait a minute. They points for athletes. They give points for children of alumni. They give points for socioeconomic situations. It would seem to me that cuts across the board.

DILLARD: Well, if we want equal opportunity for all, we can't collectively eliminate some preferences and leave the other preferences create a situation...


PAYTON: The argument we only care about racial diversify, which is what you said, is simply incorrect. Our policy is published. It's written. You can read it. We seek all sorts of viewpoint diversity, experiential diversity, what people are interested in doing, where they come from, socioeconomic status, all kinds. And that general policy in favor of diversity has as a second part we also are interested in racial and ethnic diversity.

So let's say it right. We have a very broad-based policy that seeks diversity across the board in all sorts of ways just like Harvard plan.

COSSACK: Curt, I'm being told to take a break.


COSSACK: If you will hold that thought, I promise I will get right back to you.

When we come back, achieving diversity through the admissions office. Stay with us.


COSSACK: We're back trying to discuss the University of Michigan and affirmative action and what happened yesterday in the district court.

Curt, I want to give you the opportunity now to respond.

LEVEY: Yes. I think it is important to respond to John's point about what type of diversity we are talking about. Even if I were to concede that Powell's opinion is the governing law, Powell was talking about a broad type of diversity, of which, yes, race can be one factor. But he said if what you are trying to do is racial balancing, that is blatantly unconstitutional.

They are looking for critical mass of 11 to 17 percent minorities. That's racial balancing. They're trying to get the right balance skin color.

Now they will claim that if you get right balance of skin colors, you get the right balance of viewpoints in the classroom. But I think that it's very demeaning to minorities to say that all black people have certain viewpoint or all Hispanic people have a certain viewpoint.


PAYTON: The Bakke case and Harvard plan clearly says you need to have critical mass. Otherwise, you have tokenism.

The problem with tokenism is that it is isolating for the minority students. But it also means they end up being representatives of their race. And what you just did happens to them, that you say gee, all minorities have the same thoughts. When you have a critical...


PAYTON: ... mass of minority students, in fact, you have enough so that everyone else can see that there's a diversity of views among the minority students...

COSSACK: John, don't you...

PAYTON: ... And that breaks down stereotypes.

COSSACK: ... John, don't you run into problems, though, when you start using his words, Curt's words, of critical mass because...

PAYTON: It's my word.

COSSACK: ... well, doesn't critical mass sound like quota?


COSSACK: OK, why not?

PAYTON: In fact, we get criticized because when asked, "Gee, what's the percentage that constitutes a critical mass?" we say, as the Harvard plan says, that you can't tell that. It's not a fixed number. It's not even a fixed range. This 11 to 17 percent, we have no such 11 to 17 percent.

LEVEY: Judge Friedman looked at the evidence and said that's clearly the range.

PAYTON: Judge Friedman looked at the evidence and simply said, "Gee, it looks to me like it's 11 to 17 percent. What's the conclusion from that?" He just looked at what had happened over years. And, in fact, there is great variation.

Eleven to 17 in fact some years it's below 11. You know, it goes to 17. It varies all over the place.

COSSACK: Godfrey, I want to give you a chance to jump in there, and then I've got a question for you. Go ahead.

DILLARD: OK, well, Roger, one problems here is this diversity argument is analyzed in isolation. The reality of the matter is that discrimination, racial discrimination, is still a plague within in our society. It's still a cancer within our society.

And you really can't discuss the diversity issue without putting it in the proper context. And that's one of the things we have been trying to fight. We've been fighting very difficult to try to get people to focus in the fact because of the fact of the matter that we are dealing with a university that although is very favorable to affirmative action, there is still ongoing discrimination at that university.

And if you focus in on the discrimination aspect of it, then you come to the conclusion that there must be something done to eradicate this problem. And that's where we argue that the use of race in a very limited form and a very minimalist form that the University of Michigan uses meets constitutional muster under discrimination standards.

COSSACK: Godfrey, and I just want to get back to what you are saying because I might agree and do agree that race is a cancer in this country. But the question I have to put to you as a lawyer is can you solve this problem constitutionally? I mean, isn't that really the ultimate muster? And there may be that the constitution may not allow for perhaps the best methods.

DILLARD: Well, I think one of the ways to look at it is to make sure we have a real equal and fair system -- is to look at all of the preferences. There are preferences here that discriminate in favor of white students. And that is one of the things that we are trying to get the courts to focus in on.

This is just not a situation where you have black preferences. There are white preferences. And the fact that you give a preference to alumni, which is overwhelmingly white, and the fact that you call it an alumni preference or a legacy preference, does not eliminate the fact that it's in fact a white racial preference.

LEVEY: But the constitution does not forbid preferences for alumni or athletes...

DILLARD: Well, well...

LEVEY: ... They're not subject to strict scrutiny. The reason we subject race to strict scrutiny is to protect minorities, not to hurt them.

DILLARD: ... Well, I certainly don't think you are protecting us in this particular case, Mr. Levey. But let me say this. My point simply is that you choose not to call legacy a racial white preference. I do.


COSSACK: I've got a few seconds left. John, I want to ask a specific question to you. If you lose this case in the Sixth Circuit, is affirmative action in the universities a dead letter issue?

PAYTON: Oh, I think we will go to the Supreme Court. I think both sides will go to the Supreme Court if the Supreme Court hasn't already...

COSSACK: What I'm saying is if the Supreme Court don't uphold this, I mean, if they don't uphold this issue, isn't Bakke over with? PAYTON: Well, if the Supreme Court says Bakke is not the law, we will abide by what the Supreme Court says. I think that this is an established situation.

You know, he says that he now agrees that diversity and having a diverse student body is educational positive thing. That wasn't true very few years ago. We are learning as we go. We are going to change the way this is perceived.

COSSACK: Well, thank you all. I'm afraid I've got to cut you off because that's all the time we have for today.

Thanks to our guests. Thank you for watching.

Today on "Talkback Live," when your dog attacks, who is responsible? Send your e-mail to Bobbie Battista and tune in at 3:00 p.m. Eastern time.

And I'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.



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