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Affirmative Action Decisions

June 23, 2003 at 12:00 AM EDT


JIM LEHRER: And more on today’s decisions now from NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the “Chicago Tribune.” Jan, welcome once again.


JIM LEHRER: Let’s take these two affirmative action cases one at a time. The undergraduate case the vote was 6-3. What did the majority say?

JAN CRAWFORD GREENBURG: That opinion was written by the chief justice. In that case, the court struck down the University of Michigan’s undergraduate admissions policy. It said the policy looked too much like a quota. Now, it was… that policy awarded points to applicants based on a variety of factors, and you could get 20 points if you were a member of an underrepresented minority– if you were an African American, Latino or a native American. If you got 100 points, you were guaranteed admission.

So the court today said, “this is just too much like a quota.” Race could be determinative almost in every case. The chief justice said that as a result, the policy was not narrowly tailored enough to achieve a diverse student body, and that the undergraduate institution had to go back to the drawing board.

JIM LEHRER: Now, the six who were, including the chief justice, who were with them, included Stephen Breyer, who is usually on the liberal side. That’s unusual in this case.

JAN CRAWFORD GREENBURG: That’s right. And also Justice O’Connor, who is a justice that we, of course, were watching very closely in these cases. Justice Breyer wrote a separate opinion announcing that he was joining the outcome of this case but not necessarily the reasoning.

He said, “I’m going to sign on to Justice O’Connor’s concurring opinion in that case.” In her opinion, in the undergraduate case, she wrote separately to say that the undergraduate case was unconstitutional in her view because it had many features that the law school program that the court uphold today did not have.

JIM LEHRER: We’ll get to that in a minute. Now, what did the three justices in the minority say?

JAN CRAWFORD GREENBURG: Justice Ginsberg wrote quite a passionate decision talking about the very real and lasting effects on racism in our society and why these programs were necessary today, while today there are still very real barriers to minorities entering society and in the work force.

She said in her dissent that in some ways maybe the Michigan undergraduate program was better than the law school program. The law school program now didn’t have the point system. It looks at people on a case-by- case basis. If I could just read what Justice Ginsberg said: “If honesty is the best policy, surely Michigan’s accurately described, fully disclosed college affirmative action program is preferable to achieving similar numbers through winks, nods and disguises.”

She was troubled by some suggestion that what the schools may do if they’re not awarding points to applicants and being open about it is that they’ll start looking at symbols, essays by students who say they’ve overcome obstacles or say they’ve grown up in disadvantaged neighborhoods, so she thought that maybe the direct way was the better way.

JIM LEHRER: Make sure we understand here, as Spencer said in the piece, there’s 150 possible points. If you get 100, you’re guaranteed admission.

JAN CRAWFORD GREENBURG: You’re guaranteed admission.

JIM LEHRER: You’re guaranteed; 20 of those is automatically given to an underrepresented race.

JAN CRAWFORD GREENBURG: That’s right. One-fifth of the points you need to get in.

JIM LEHRER: All right. Now let’s go to the second case, the 5-4 case on the law school. Now, what did the majority, the five, say on that?

JAN CRAWFORD GREENBURG: This is the ball game. Today’s decision in this case, written by Justice O’Connor, is the first time a majority of the Supreme Court has ever said that colleges and university officials can take an applicant’s race into account to achieve a diverse student body. That has been a very hard-fought and highly contested issue in the lower courts.

Many lower courts have ruled race couldn’t be taken into account. For the first time ever today, a majority of the justices said race could be taken into account, and they upheld the law school admissions program at the University of Michigan.

JIM LEHRER: And the law school… explain how the law school system operates differently than the undergraduate system.

JAN CRAWFORD GREENBURG: Sure. As Justice O’Connor made very clear in her opinion today, it’s an individualized look at an applicant. The law school acknowledged it’s trying to reach a critical mass, as they say, of minority students. In other words, a significant number of minority students who would feel they could speak openly about their views on issues without having to be the token minority or express the minority viewpoint.

So to get that critical mass, they would look at the entire… the whole person, the entire person, and do a case-by-case review of that person, taking race into account as one factor among many factors.

JIM LEHRER: And did Justice O’Connor’s majority opinion say, “it’s a good thing to have diversity in the law school”?

JAN CRAWFORD GREENBURG: She said she fully embraced the notion that diversity has and carries with it important educational benefits. And she embraced the idea advanced by business leaders and military officials, that that benefit in the educational setting then goes out into the working world, in a corporate world where workers are dealing in a global marketplace, and in the military.

The court seemed particularly persuaded by a friend of the court brief filed by retired military leaders who suggested that a ruling against Michigan in this law school case would have a dramatic effect on the look of the nation’s officer corps because the service academies would be affected.

JIM LEHRER: We’re talking here about a 5-4 decision, however, and Justice O’Connor… we don’t need to get into inside baseball on the Supreme Court, but is it unusual for the swing– because that’s what she was– the swing vote to write the majority opinion?

JAN CRAWFORD GREENBURG: I think most people thought that Justice O’Connor would write the majority opinion, because her vote was the one, I think, that people found hard to predict. She often has written opinions in these kinds of race-conscious decisions that governments make.

JIM LEHRER: What did the four in the minority say in that case?

JAN CRAWFORD GREENBURG: This case produced six different opinions, so we have four dissenting opinions from the dissenting justices. Of course, they said…

JIM LEHRER: Rehnquist, Scalia, Thomas and Kennedy.

JAN CRAWFORD GREENBURG: Rehnquist, Scalia, Thomas and Kennedy. And they said, look, the Constitution, the equal protection clause says everyone has to be treated equally. Michigan is treating white students unequally. They’re favoring minority students over white students. The constitution is color blind. Therefore, this should violate the Constitution.

First of all, Justice Scalia also flagged several areas that people might still be able to mount legal challenges to affirmative action programs. Justice Thomas wrote a quite moving and passionate dissent in which he talked about the stigma that affirmative action carries for some black people because some people may assume you’re a beneficiary of affirmative action, a position that he has taken in the past. But the main opinion Justice O’Conner’s majority opinion for the court I think surprised many people.

In her opinion, she repeatedly referred to Justice Lewis Powell, who had the court’s last word on this issue in 1978 in the landmark “Bakke” case. And Justice Powell, a moderate, a justice that O’Connor deeply and greatly admires, also left his mark today.

JIM LEHRER: So from a legal standpoint, like it or not, as you said, the ball game is that if you take these two cases together, that the Supreme Court said you can consider race in some way if you do it the right way.


JIM LEHRER: In college admission.

JAN CRAWFORD GREENBURG: That’s right. That was the big open question. That’s been a question that’s been open for a generation. The court definitively said today that you can consider race and, as you said, that diversity is a good thing.

JIM LEHRER: Okay. Jan, don’t go away. But now we go to Margaret Warner who has some reactions to these two decisions on affirmative action.