BILL MOYERS:

Welcome to NOW. Who would ever have imagined that two all-American words like affirmative and action would become words to fight over? But they have divided our country for years now, as code words for the struggle over whether it's legal to use race as a factor in the admission of students to college.

Next week, affirmative action will once again spark controversy and dissention. The Supreme Court will hand down its decision in two very important cases. The court's first ruling on college admission since 1978. Both suits were filed by white applicants who claim they were unfairly turned down, while less-qualified blacks and Latinos were accepted.

Both cases involved the same campus. The University of Michigan. And both cases have the same defendant. Gratz versus Bollinger, and Grutter versus Bollinger. The Bollinger in those cases is with me now. Lee Bollinger was President of the University of Michigan when those cases were filed. He's now President of Columbia University here in New York. Welcome to NOW.

LEE BOLLINGER: Thank you very much.

BILL MOYERS: You once clerked for the Chief Justice of the United States Supreme Court, Warren Berger.

LEE BOLLINGER: I did.

BILL MOYERS: What do you think he would think, knowing that you were back up in his court as a defendant?

LEE BOLLINGER: I think he would find it ironic, as I do. But I think he would be on our side in this.

BILL MOYERS: But as you look at the Supreme Court, an ideologically divided Supreme Court, do you think this court is on your side?

LEE BOLLINGER: It's hard to say at this point. Although I'm very hopeful. Obviously, we'll have to wait and see. We made the best case I think we can.

BILL MOYERS: What is at stake in those two decisions next week?

LEE BOLLINGER: I think what really is at stake is the question of how we as a society will deal with race. It has been part of our history, of course, from the beginning. When we know that when the Constitution was put together, slavery was allowed.

It became, of course, the central issue in the bloodiest battle on American soil, with civil war. Jim Crow laws were upheld in Plessy versus Ferguson, and it took Brown versus Board of Education to really bring us to the point we are today.

And I think the question really is, will we continue on the course that Brown set, trying to achieve an integrated student, integrated society? Or will we reverse course at this point, as we have at some points in our history?

What is now really at stake is therefore a different constitutional principle. What the plaintiffs really want is an entirely new course of Constitutional law, that would forbid completely any consideration of race, ever. And that would be, as I've said before, a major change in Constitutional policy.

The truth is, that the enrollment, of African-Americans, Hispanic, Native-Americans, in our selective universities and colleges throughout the country, will drop dramatically. And we will have universities that look very much like they did in 1960.

BILL MOYERS: The opponents of affirmative action have said that if the court were to decide in your favor, and against them, they would then go to the states, to try to wage a campaign to pass Constitutional amendments outlawing it at the state level forever.

LEE BOLLINGER: Right. And of course, they're free to do that. And that's what happened in California, with Proposition 209 in the mid-1990's. The Constitution of California was amended to prohibit race as a factor in admissions into public universities.

So, even if the court does say, as I predict or hope it will, that race can be considered, as it has been, it's still open to legislatures or to individual universities, to decide not to do that.

BILL MOYERS: How do you personally explain that the deep and dogged opposition to affirmative action?

LEE BOLLINGER: Well, I think it's part of really a larger social agenda, that a number of people have. A number of institutions have. To try to change the course of political and social history that we've built up, since really, around the time of the Second World War.

There are many programs that try to address past injustices. Try to bring us together as a society. Try to help deal with the inequalities and economic wealth. Try to deal with educational problems in K through 12. There are many, many programs that we've developed to try to address these issues.

It seems to me that affirmative action is one area where people who oppose these programs have decided to focus their efforts. And I think it's probably their leading hope to try to reverse course on that.

BILL MOYERS: THE CHRONICLE OF HIGHER EDUCATION is out with a poll just this week. Let me share it with you. It says that Americans are all for diversity on college campuses. But they don't believe race-conscious admission policies should be used to achieve that goal. Does that surprise you?

LEE BOLLINGER: First of all, I think any single poll is very difficult to draw any conclusions from on an issue like this. This is extremely complicated. And admissions are complicated. We don't give credit just for race or ethnicity. We give it for athletic ability, or for the fact that you've lived abroad, or an international student. Or you come from different parts of the country.

So, you really need to explain how admissions works to people, I think, before you can ask them, "Is this fair, or is this not fair, to do this particular thing?" So my experience has been, really, that when you do explain it, people understand. And they agree with it. They don't want to reverse course.

BILL MOYERS: When black students apply to the University of Michigan, they are given points for being black. Isn't that right?

LEE BOLLINGER: That's correct. At the undergraduate program, yeah.

BILL MOYERS: But white students don't get points for being white, do they?

LEE BOLLINGER: That's correct. Well, they can get points for other things about them.

BILL MOYERS: For being the sons or daughters of alumni.

LEE BOLLINGER: That's correct.

BILL MOYERS: Coming from northern Michigan...

LEE BOLLINGER: That's right.

BILL MOYERS: ...because you wanna promote geographical diversity. That sort of thing.

LEE BOLLINGER: That's correct.

BILL MOYERS: But do you perceive why white students would think this was unfair, that blacks get points, or Hispanics get points, and they don't?

LEE BOLLINGER: Well, first of all, I want to say that I think the real issue in the case is not a particular program, using points or not using points. It's really the fundamental principle. Can you consider race and ethnicity as factors in admissions in order to get an integrated student body?

That's really the fundamental principle at stake. Very important to keep in mind the following. First of all, you have a total of 150 points that you can get as an applicant. Twenty of those are for various purposes like the fact that you're from Michigan, or from a particular part of Michigan. Also race.

The overwhelming majority of the 150 points, around 90 to 110 are really for academic criteria alone. So, this is a small part of the overall set of things that are considered. The other thing is to remember that when you think, "Is it really unfair to give credit, or to use as a factor the fact that an applicant is African-American," we also consider other things. Whether you come from Oregon, as I did, or from New Mexico, or from Florida. In order to get a geographically diverse student body.

We also consider whether you're the child of an alum. And it's very important to ask the question, if you think you were not admitted because someone else got a special plus factor in their admissions process, why do you single out one group rather than other groups, for that irritation or anger?

BILL MOYERS: You mean, if my child loses his place to an athlete, you need an athlete at the University of Michigan.

LEE BOLLINGER: That's right.

BILL MOYERS: Am I less likely to protest than if my child loses a place to a black person?

LEE BOLLINGER: That's right. I mean, I think the question we have to ask ourselves is, why is it that race seems to attracts so much attention, and to some extent, hostility in the admissions process, when it's one of many, many things that are taken into account?

BILL MOYERS: Well, isn't there a reason for this? I mean, Thurgood Marshall, in the case you referred to — Brown versus Board of Education — wrote, "Distinctions by race are so evil, so arbitrary and invidious, that a state bound to defend the equal protection of the law, must not invoke them in any public sphere." He's not talking about athletics there, or geographical diversity. He's talking about race. Which is, as you know...

LEE BOLLINGER: Right.

BILL MOYERS: one of the most powerful, emotional issues in our society.

LEE BOLLINGER: Well, I couldn't agree more. That using race as consideration in public decision-making is really problematic. And we have to be exceedingly careful about it. But the Supreme Court, including Thurgood Marshall, has never held never held that in fact, race can never under any circumstances be used in public decision-making. So, we have for example cases involving redistricting for elections. Where the court has long held that race can be the factor in deciding how to draw electoral districts.

And there are other instances. What the court has done is to set up an exceedingly high burden that the state has to meet, in order to justify any use of race. And what the court held in Bakke was that that justification was met for higher education if you are trying to build a integrated student body. And you use it simply as one factor among many.

BILL MOYERS: And if the court next week should rule that you cannot do that, if they're the new majority could should take the position that what you're doing at Michigan and other places is not permissible, are there no other ways to try to achieve the same objective of a diverse student body, an integrated campus?

LEE BOLLINGER: One of the things that's been impressive to me, in being part of this issue for now six years, really, in the lawsuits is the ease with which so many people have thought "Don't worry. If you can't do this, you'll find some other way to achieve diversity." Because almost everybody believes that there ought to be racial, ethnic, gender, international, geographic diversity in higher education.

Everybody seems to understand now that having people of a particular kind, everybody basically the same, does not make educational sense. But the fact of the matter is, there is no viable alternative to considering race. That's the direct, honest, candid way to do it.

BILL MOYERS: You say that affirmative action is practical and efficient. What do you say to the critics who argue that it has resulted in a lowering of the standards in higher education? Because we're letting people in who are not prepared.

LEE BOLLINGER: Well, very important to begin with the fact that we are talking in any of these universities with the very top students, applicants in the United States. We're talking about the top ten, 20 percent measured by standard academic criteria. And it's within that pool of very, very successful and academically talented students that we are selecting our student bodies.

We also, as I've indicated before, take special consideration of where you come from in the United States. We want to bring together people from different part of the country parts of the country. George Washington once proposed a national university. And the reason he wanted it was because he thought that society needed to overcome the natural prejudices that people have for different parts people from different parts of the country.

BILL MOYERS: But not black slaves.

LEE BOLLINGER: That's right. Exactly. We do that today. We do it with foreign students who we want. We do it with students who have had special life experiences. So, it's within that very, very successful pool of applicants that we are considering a variety of factors of which race and ethnicity are two.

BILL MOYERS: But here's the practical problem. I mean, if you take a young man who's mother is white and who's father is black who applied, how do you define him on the diversity scale? How do you say, "This person fits the diversity model and this person doesn't?"

LEE BOLLINGER: Right. Well, obviously these are hard, difficult, educational judgments. We make them all the time. I mean, we try to decide whether this applicant from this part of the United States will really contribute something to the class. We ask ourselves whether an immigrant student who came at age 13, had to learn the language and maybe only got C's and B's but had incredible motivation and chose a capacity to take advantage of an education. We would offer... that's a student we want. These are difficult judgments.

BILL MOYERS: That's subjective...

LEE BOLLINGER: They're subjective ultimately.

BILL MOYERS: President Bush says, "I'm for diversity." He got a rousing ovation recently when he said, "I'm for diversity, in effect, but I'm against what the University of Michigan is doing."

LEE BOLLINGER: Well, I mean, I think it's too bad that the government has weighed in- against affirmative action in both cases. You know, the former administration under President Clinton supported the universities, as has, I must say, General Motors, Microsoft, Intel, leading corporations, President Gerald Ford, Secretary Colin Powell. We have the military institutions and individuals supporting the mainstream American support of this. The desire not to reverse course at this point is deep and profound. The President has taken a different position. I think it's unfortunate. But that is the position he's taken.

BILL MOYERS: Does the other side... do the plaintiffs in this case have any point you respect?

LEE BOLLINGER: Well, of course, I respect them. I think this is a complicated issue. Those who say "We need to address the whole set of issues that we've identified or talked about and here's a plan for doing it. And I think it's a better plan than where we stand at the present." That is the position I respect. And I would be delighted to see. I don't see it on the other side.

BILL MOYERS: So what do you do next week if the court decides against you?

LEE BOLLINGER: Well, I think we have to step back and face a tragic reality. And I think we'll have to take a deep look at where this society can go from here. It will not be as easy. It will not be as effective. But the idea of giving up of course is not possible.

BILL MOYERS: Lee Bollinger, thank you for joining us on NOW.

LEE BOLLINGER: Thank you.