Editorial Views

TERENCE SMITH:

For a sampling of opinion on the decisions handed down by the Supreme Court yesterday, we turn to four editorial page editors and writers: Rachelle Cohen of The Boston Herald, John Diaz of The San Francisco Chronicle, Jason Riley of The Wall Street Journal, and Cynthia Tucker of The Atlanta Journal-Constitution.

Welcome to you all. I'd like to ask all of you, and beginning with you, Jason Riley, these decisions being described as landmark decision, were they good for the country?

JASON RILEY:

Well, my view is that courts are supposed to settle disputes. This ruling doesn't seem to have settled anything. One thing that strikes me is that Justice O'Connor's decision isn't even completely understood by her fellow justices.

How are college administrators supposed to understand it? Scalia says it is a recipe for more litigation. It makes you wonder what to make of all this.

TERENCE SMITH:

Cynthia Tucker, good question. Good for the country?

CYNTHIA TUCKER:

I think it was a very good decision for the country, Terry.

What the majority decided, what the majority affirmed was Justice Powell's statement, his brief of several years ago in Bakke, that indeed the state has a compelling interest in promoting diversity. And I think that is something that most Americans have already decided — certainly most major American institutions, colleges, corporations, United States military.

And I think most Americans understand that we could not expect to be leaders in the world, going out and promoting our democratic values, if we could not show the rest of the world what a functioning, multiethnic democracy looks like. So I think this affirmation of that basic principle was very good for the country.

TERENCE SMITH:

Rachelle Cohen, how do you see it, as something good for the country or not?

RACHELLE COHEN:

I think it's marvelous for the country, in part because it's a reflection of what mainstream America is really thinking.

This may astonish Cynthia, because we have rarely agreed on anything at all on this program in the past, but the way the court split this decision is entirely appropriate. Most Americans, I think, believe very deeply in the value of diversity and in the goal of diversity.

We differ only in how we get there. And that's what the court was saying yesterday. They, too, were troubled by how the University of Michigan, in its undergraduate program, was going to achieve that goal. They liked the way the law school approached the issue. But in the undergraduate program, they were troubled by — as I think most of the American public would be troubled by — the notion of a point system, which I think most of us, find odious.

TERENCE SMITH:

John Diaz, round it out for us. What is your view in terms of whether it is of benefit to the country?

JOHN DIAZ:

I think it is, Terry. This is not going to be the last word on affirmative action. There is certainly some room for interpretation within the court's rulings. But I think there's a clear overriding message to both of these rulings — both in terms of upholding the law school using race as a factor and rejecting the undergraduate point system — and that is, colleges are to look at applicants as individuals instead of as a group, and I think that's positive.

Certainly, preferences are always going to be part of a college admission process. They are here in California, which has outlawed affirmative action. And most of the preferences, whether it's for children of alums or geography or any other type of thing, right now are skewed against minorities.

TERENCE SMITH:

Jason Riley, Rachelle Cohen sees the split decision as a plus, as a reflection, in her words, of the mainstream view. Do you agree with that?

JASON RILEY:

Well, colleges still don't know how much weight they can give race in admissions, and that has been the dilemma for 25 years.

This decision says you can still racially discriminate as long as you're not too obvious about it. And that's not much to work with if you're sitting on a board of people deciding how to get the racial mix right at the school.

TERENCE SMITH:

Cynthia Tucker?

JASON RILEY:

So, no, I don't think it's a clear message at all.

TERENCE SMITH:

Cynthia Tucker? Jason Riley's phrase, you can discriminate if you are not too obvious about it?

CYNTHIA TUCKER:

I don't think that's the case at all. I think that first of all, a few of the elite colleges and universities used a point system anyway. The simple fact of the matter… first of all, let's be clear….

TERENCE SMITH:

We should explain — that the point system is what the court objected to for the undergraduates.

CYNTHIA TUCKER:

A certain number of points were assigned for race, as a certain number of points were assigned for many other factors that the college students showed. Race was just one of many, and the court objected to that and said, you can't do that.

The simple fact of the matter is, most elite colleges and universities don't do that anyway. They have a huge admissions screening committee that reads every individual essay, every application, and they look for many things about the student. Of course they look at grades and test scores. They look at leadership ability. They look at, in some cases, musical talent. And we all know that many colleges love athletic skills. That's always been considered.

For huge colleges, the few that use the point system, they clearly have to abandon that, but there is nothing difficult about sitting down, getting enough people to sit down and look at every student's essay individually and say, for a variety of reasons, this is a student that will enhance this campus and who will probably be enhanced by his or her experience here.

TERENCE SMITH:

For a variety of reasons, diversity being one among them.

CYNTHIA TUCKER:

Race being one of those many reasons.

TERENCE SMITH:

Rachelle Cohen, I wonder what you think of that, and further, whether you think the impact and resonance of this decision will go beyond the college campus into the workplace, into society at large?

RACHELLE COHEN:

Let me take your last point first. I think that's exactly what the court was hoping for.

One of the things that troubled them deeply, of course, in terms of affirmative action, was what would become of the military? One of the Amicus briefs was filed by a number of very distinguished military and ex- military officials. It was critical that we preserve a diverse military, and preserving a diverse military meant preserving diversity at the academies.

But I would also take issue with Cynthia on the notion of this being an easy process. It's not an easy process. The University of Michigan and its undergraduate plan took the easy way out and the lazy way out. Universities will no longer be able to do that.

They will have to do what, indeed, Ivy League schools have been doing for years. They will have to go out and do a lot of one-on-one interviewing. They will have to look at the whole person, as Michigan does at the law school. And that's a very good thing. They'll also have to engage in what some universities around here have been doing, which is setting up programs between the public schools and the universities so that they have a ready crop of minority candidates and qualified minority candidates to start looking at.

TERENCE SMITH:

John Diaz, do you think the court was trying to speak to the larger issues of society, the workplace, et cetera?

JOHN DIAZ:

I think it certainly does have great portent for the future of affirmative action everywhere.

In fact, we saw this with the number of Fortune 500 companies that weighed in on this decision, who were saying… who I think were not only concerned about what this meant for the future of their work forces, but also knew that affirmative action was a very important part of them building a diverse and vibrant work force, and certainly knew that however this decision came down, it was going to have implications and provide guidance for future courts on other issues.

TERENCE SMITH:

Jason Riley, you mentioned earlier… you quoted Justice Scalia forecasting more litigation on this. What is it that he… you anticipate, on what grounds?

JASON RILEY:

Well, what Justice O'Connor did was extend Justice Powell's argument for the diversity rationale, diversity as a compelling state interest to the majority view. It was Powell's view alone 25 years ago. No one else signed on to that. She has made it… she has given it five votes and said, now it is the law of the land.

But all it really does is perpetuate this understanding, this false understanding, that schools can achieve this critical mass of blacks by just using race as one factor among many, and not the determining factor.

The statistics just don't back that up. That is pure fantasy. Something like 29 black kids in the entire country last year scored high enough to get into Michigan under the same standards as the white children.

Race has to be the determining factor to get into these schools if they're going to achieve the critical mass they want. And so to pretend that it can just be used as one factor is just pure fantasy. It just won't happen.

The emphasis needs to be on educating these kids in primary and secondary education. And that's the big opportunity that the court missed.

They could have put the spotlight back on the primary and secondary educators who are doing a bad job preparing kids so that they don't need preferences when they become freshman applicants in college. And that's the opportunity they missed, because that's where the focus should be.

TERENCE SMITH:

The determining factor, Cynthia Tucker?

CYNTHIA TUCKER:

I couldn't disagree with Jason more.

If race were the determining factor, Terry, these kids would never graduate once they got in. But in fact, the numbers show that most of the minority students who go to elite universities do, in fact, graduate. In fact, two former Ivy League presidents did a marvelous study a few years ago, tracing the affirmative action students from professional school into careers where they did very well.

The simple fact of the matter is, there is not that much difference between a kid who scores 1,500 on the SAT and a kid who scores 1,350. Both can do the work at Harvard. But the kid who scored 1,350 may be black, may be Latino, and you decide that kid brings something to the college that will enhance the university and, again, he will be enhanced by the experience.

In elite colleges, race is never the determining factor. If it were, the students would never graduate.

TERENCE SMITH:

Rachelle Cohen, let me ask you a little bit about the politics of this.

In the extensive coverage that these decisions received today in the papers all across the country, many people pointed to the White House brief and the role of Alberto Gonzalez, the White House counsel, who is often mentioned as a possible future Supreme Court justice — in other words, that Justice O'Connor took a lead, in effect, from the Bush White House. Is that your read?

RACHELLE COHEN:

Hard to determine whether she took their lead, or having read her decision, the president was in agreement yesterday. It's a little chicken and egg there with the White House.

But will there be political repercussions? Absolutely. I think it's the fondest hope of a lot of us that Justice O'Connor stay on the court for the time being, because should she decide to leave for this term, the battle that would ensue over her replacement could get mean and could get ugly over this very issue. And that would be a disservice to her perfectly splendid record especially on this issue.

TERENCE SMITH:

What about that, John Diaz, do you expect that there will be a battle focusing on this issue over future nominees?

JOHN DIAZ:

This absolutely elevates the Supreme Court, the composition of the Supreme Court as a political issue in this country.

Let's not forget, George W. Bush is sitting in the Oval Office by virtue of a 5-4 vote on the Supreme Court. Abortion groups on both sides, both pro and con, are already positioning in anticipation that there may be an opening or two on the Supreme Court.

Now you add affirmative action into the mix, and you really see the importance that the Supreme Court is going to have in the future course on some of these issues.

I suspect it is going to be more and more an issue in election 2004.

TERENCE SMITH:

And it sets the stage for quite a battle. Thank you all four very much.