RAY SUAREZ: At issue before the nation's high court: a pair of affirmative action lawsuits against the University of Michigan. The Justices agreed to hear the cases yesterday. One involves Barbara Grutter. Six years ago, when she was 43, the former consultant applied to the university's law school, and was rejected despite what she considered strong qualifications. Grutter, who has not attended an alternative law school, says she didn't get in because she's white.
BARBARA GRUTTER: I think that I was discriminated against in the admission process, very specifically, because I believe they have different criteria based on race.
RAY SUAREZ: The law school considers race as one of several factors for admission. Jeffrey Lehman is the dean.
JEFFREY LEHMAN: It's not a colorblind society. Opportunity is not distributed without regard to race. And therefore in order to have a racially integrated student body, it is necessary to pay attention to race in the admissions process.
RAY SUAREZ: Grutter sued Michigan, and a federal judge last year deemed the school's consideration of race unconstitutional. That decision was later overruled on appeal. The second case involves Jennifer Gratz. She applied to the university's undergraduate campus at Ann Arbor in '95. Gratz was waitlisted. She spoke to the NewsHour in 1997.
JENNIFER GRATZ: It made me question everything I've ever wanted to do. It made me question my talents. I was embarrassed, and I was upset.
RAY SUAREZ: So Gratz, who later went on to Michigan's Dearborn campus, also challenged the university. She noted that Michigan-Ann Arbor accepted African Americans and Latinos with similar credentials. She lost. A different federal judge sided with Michigan, citing the "educational benefits" of a racially diverse student body. To bolster its argument, the university cited a landmark Supreme Court case from 1978, known as the Bakke Decision. On one hand, the Court deemed illegal a quota system-- saving a preset number of slots for minorities. On the other hand, it endorsed racial diversity as a "compelling government interest." Jeffrey Lehman, the Michigan law dean, says the Bakke decision has led to what he calls a "moderate form of affirmative action."
JEFFREY LEHMAN: The kind that says, "no quotas, fair competition for all seats," in which race is a factor, but not the overwhelming factor -- one of the many factors in admission. It's the right policy for our country at this time, and I'm confident that the Supreme Court will continue to keep it as the law of the land.
RAY SUAREZ: That court will hear oral arguments on the Michigan cases next spring and rule by July.
RAY SUAREZ: We pick up the story now with Terence Pell, president of the Center for Individual Rights, which is representing the white students in these cases; he is the former deputy assistant education secretary for civil rights policy during the Reagan Administration; and Christopher Edley, professor at Harvard Law School, and as special counsel to President Clinton, Professor Edley led the White House review of affirmative action programs.
Terry Pell, is it significant that the court wants to hear these two cases now?
TERENCE PELL: I think this is very good news. We have conflicting lower court opinions all over the country. Some courts say colleges can look at race as much as they want. Other courts say they may not look at race at all. This is why we have a Supreme Court, to settle these issues, to declare once and for all what the law is, uniformly across the entire country.
RAY SUAREZ: Professor Edley, was a new case needed with this patchwork quilt that Terry Pell talks about?
CHRISTOPHER EDLEY: I can't disagree. I think there's quite a bit of confusion in the lower courts. And more importantly I think there is some confusion in higher education.
While the overwhelming majority of the leadership in these selective institutions very much believe that race-conscious affirmative action to promote diversity is essential, they are confused about what is legally permissible.
So a definitive ruling from the Supreme Court I think is overdue. They've been ducking it for a couple of years. And they've reached out to take a case where the record is reasonably full.
RAY SUAREZ: And given what's alleged by these two women, given the way they've structured their pleas, does this have a lot... is a lot at stake for these institutions that you mention and for the law across the country?
CHRISTOPHER EDLEY: I think a great deal is at stake. One common misconception is that the court's ruling will only apply to public institutions. And that's not correct.
While the equal protection clause of the Constitution will apply to public actors, Title 6 of the Civil Rights Act of 1964 makes that same basic set of principles applicable to private universities and colleges that accept government money, and almost all of them do in financial aid or in research funds. So this ruling could have very sweeping effects within the 10 percent of higher education that is selective and employs some form of affirmative action.
RAY SUAREZ: Do you agree that there's possible wide applicability?
TERENCE PELL: I do agree. I think Professor Edley is exactly right. This will carry over to the private schools, at least those that receive federal funding.I think there's another way in which this could have a wide significance.
If the Court says that diversity, manufacturing a certain mix, a certain racial mix of students is a constitutionally permissible goal for the state and it's reasonable to expect that other state agencies will also make the same argument, that it's in their interest, that it's in the government's interest to have, for example, a certain racial mix on our juries or that it's in the interest of federal agencies to have a certain racial mix of policy makers.
Once the court says or if the court says that diversity, which means in this case achieving a certain percentage mix, racial mix, of students or applicants or workers, then that principle can apply in other instances and in other circumstances, and the door is open for a number of parallel claims by other government agencies.
RAY SUAREZ: Is that really one of the big targets of your agency, that it take down that idea that there's a state compelling interest in creating diversity.
TERENCE PELL: That's right. We think that the idea of diversity is so vague that it's really empty, and we do not believe that the state has a constitutional right to prefer one applicant over another applicant on the basis of their skin color solely to achieve, quote unquote, diversity. We think that there may be reasons for the state sometimes to prefer applicants on the basis of race but diversity is just simply too amorphous a goal to license the state to be picking and choosing on the basis of skin color.
RAY SUAREZ: Professor Edley, amorphous or a compelling state interest?
CHRISTOPHER EDLEY: Well, a compelling state interest. And I don't want to get into a debate about whether diversity is the right word. I think the best way to think about this is whether these institutions are going to be allowed, as they have been for the last 25 years, since the Bakke case, are going to be allowed to continue to define what they think they need in the mix of students and faculty in order to achieve their mission, in order to pursue excellence.
These institutions have concluded that the best educational environment, the best way to serve the society in which they're situated is to see to it that their institutions are inclusive, that that produces excellence. There's also a disagreement, we obviously have a disagreement about what the current state of the law is.
I think in my view and certainly the view of most courts, the controlling opinion in the Bakke case established that diversity can at least in some circumstances provide the compelling interest that will justify carefully constructed race-conscious decision-making.
One of the questions in this case will be when the Supreme Court affirms that principle, will they affirm it in a way that also strengthens the claim for inclusivity in other contexts, in employment and housing and so forth or conversely if for some reason the Supreme Court concludes that diversity is not a compelling interest in higher education, will they do that in a way that casts doubt on whether diversity and inclusion are important for an urban police department, are important for prison guards, are important in a variety of other contexts?
RAY SUAREZ: How do you respond?
TERENCE PELL: Look, I think you have to look at what diversity means. Surely there are some types of diversity that are educationally valuable. If you ask students, for example, what types of diversity they value, they say things like ideological viewpoint, religious background, socioeconomic background. But racial diversity comes pretty far down on the list.
So when schools like Michigan claim they want diversity, you have to ask exactly what kind of diversity it is they want and does that kind of diversity justify the use of racial preferences? We can all agree that it's important for a school to have a diversity of viewpoints and political outlooks. I don't think we all agree that engineering a racial mix of students, engineering a certain combination of skin colors adds to the educational environment of a school.
RAY SUAREZ: Let me understand some things... go ahead. I'm sorry.
CHRISTOPHER EDLEY: Well, it's certainly clear that we don't all agree on that. But in fact within higher education, there is overwhelming agreement among the leaders of higher education on faculties and even in student bodies the research indicates, the social science research indicates, for example, that students overwhelmingly identify racial and ethnic diversity as a source of educational enrichment in their lives. Faculty and students both report overwhelmingly in independent surveys that it changes the content of what happens in the classroom, in students learning from one another outside of the classrooms.
One of the important things about this case I think is that there is a social science evidence component in the record. And while it's disputed, there's plenty of information there I think for the Justices to look at to see that the argument in favor of creating excellence through inclusion isn't just hand waving by a bunch... by a bunch of... a few people at elite schools but rather this is a very widespread, a widespread concern that makes it compelling, and it's supported by social science evidence.
RAY SUAREZ: Well, how do we not end up right where we are now with Bakke sometime in the future with Grutter and Gratz? If this has been the controlling precedent in this area of law, yet states, whole circuits of the federal courts have gone their own way, could we be having this argument again in some other form in ten years or twelve years?
TERENCE PELL: I would hope not. I mean I would hope that the Supreme Court would put an end to this. In fact, we have a laboratory example of what happens when you do put an end to this.
California and Texas have done away with race conscious admissions for the last five years. And minority enrollment at those... in those states has, you know, is stable and in fact increased at many of those schools. In fact today every single public school in California and Texas has enrollment of underrepresented minorities that exceeds 10 percent.
And that's key because 10 percent is the number that Michigan says is the threshold, the minimum threshold that you need of minority students to have a critical mass of minority students. The fact is schools in California and Texas are getting that critical mass without using racial preferences, and that's a critical point. That's the way the country needs to go.
RAY SUAREZ: Professor, quick response.
CHRISTOPHER EDLEY: Well, I just don't think that that's factually correct. The track record in Texas is quite mixed. At one of the flagship campuses, the University of Texas in Austin, the undergraduate numbers have basically recovered to the levels that they were five or six years ago. That's not the case in graduate schools and it's not the case at Texas A&M, the other flagship school in Texas. Sometimes it works; sometimes it doesn't. There are a lot of unique factors. Many things have to be done in order to make some of these alternatives work.
In California the situation is even more mixed. There have been declines over time. And by no means is California or the flagship institutions serving a reasonable proportion of Latinos in particular, which is of course an extremely fast growing component of the population in California.
There's...there are at least two major issues: one is the quality of the educational environment and how much learning goes on and how diversity improves that core educational mission. But the other thing to think about particularly -- I teach at a law school -- is are these universities serving the professions, serving the society, producing leaders for a diverse, an increasingly diverse nation, increasingly diverse workplaces and professions.
RAY SUAREZ: Well, the arguments come later in this session and I'm sure we'll revisit this issue. Professor Edley, Terry Pell, thank you both.