Weighing Affirmative Action

RAY SUAREZ:

We pick up the story now with Terrence Pell, president of the Center for Individual Rights, which is representing the white students in these cases; Walter Allen, a professor of sociology at the University of California, Los Angeles – he was an expert witness on behalf of the minority student interveners when the cases were in the lower courts; Christopher Edley, professor at Harvard Law School – as special counsel to President Clinton, he led a White House review of affirmative action programs; and Carol Swain, a professor of political science and law at Vanderbilt University.

Let me start by getting all your reactions to the president's statement and also an idea of where this now places the White House in the national debate.

Terrence Pell?

TERRENCE PELL:

Well, we are very pleased, obviously, with the president's announcement today. He correctly recognize that the type of race preferences used by Michigan are not only unconstitutional, but they're unnecessary, and it's time for our country to move beyond that sort of heavy consideration of race in college admissions.

RAY SUAREZ:

Walter Allen?

WALTER ALLEN:

I view this as a very sad day. I think the president took a decision that was very misguided and will create movement back toward a resegregation of this society, and I don't agree; the University of Michigan's system, by quite the contrary, did not operate as a quota system.

RAY SUAREZ:

Carol Swain.

CAROL SWAIN:

I believe the president made the right decision today, and I think that it has been greatly exaggerated the impact in the end, and I think that again that we need a fair society that racial preferences create a lot of divisiveness and that there are other ways and better ways of getting diversity.

RAY SUAREZ:

And finally Christopher Edley.

CHRISTOPHER EDLEY:

Well, I don't think divisiveness is really the issue. We would still have segregated lunch counters if we were overly concerned with progress that might be divisive. It's not entirely clear what the president has decided. We're going to have to wait to read the brief. He seems to say he's in favor of diversity, suggesting he may be conceding that diversity can at least in some circumstances be a compelling interest. The question is whether he's only in favor of diversity if it happens by accident. I was very disappointed that he was waving the bloody flag of quotas when that's really not the issue in this case. There's universal agreement that quotas are and should be illegal. And characterizing the Michigan practices as quotas is frankly misleading, and will confuse the debate when we ought to be clarifying it.

RAY SUAREZ:

Terrence Pell, how do you respond?

TERRENCE PELL:

I disagree with that. I think one of the judges in the Michigan cases called the systems the functional equivalent of a quota, and what he meant by that is that Michigan decides in advance what percentage of the class it wants to be – consist of minority students, and it reverse engineers every aspect of the admissions process to get that result. It's not a quota in the sense of specifying a precise number. It is certainly a quota in the sense of reverse engineering the admission system to get a certain racial outcome, and that's unconstitutional.

RAY SUAREZ:

Professor Swain, what's the significance of the White House moving ahead to file this brief in this case? The arguments haven't been heard, this isn't an executive order, it's merely the White House joining other parties in saying this is what we think.

CAROL SWAIN:

Well, first of all, I want to say that I don't believe that this should be the litmus test as to whether or not the Bush administration is serious about reaching out to minorities. I think there are other things that we can look towards to assess that.

I think that the importance of it is that it sends a signal to all Americans that the president first of all in his words, he recognizes that discrimination is still a problem in America and that we still have issues that need to be addressed. But he's not going to privilege race and allow some students to be benefited regardless of socio-economic conditions just by the fact that they were born with a certain skin color.

RAY SUAREZ:

Professor Allen, was it important to hear from the administration as an amicus in this case?

WALTER ALLEN:

It was, the president's intervention in this case is obviously of extreme and major importance. It's just very unfortunate that he came down on the wrong side of history. The fact of the matter is that the affirmative action programs have changed the face of this nation for the better. We're better for it, we're a stronger nation; we're a better nation. And what I worry about as a result of this decision coming from the White House is sending the wrong message.

I think this is a very important message and I think it is very problematic and it may rise to the standard of a litmus test. It certainly does for many people in the black community. This just sends the wrong message to us.

RAY SUAREZ:

Earlier this evening at the White House, a spokesman promised that the briefing coming tomorrow would be "narrowly tailored" and concentrate on the equal protection clause of the constitution. What role does a brief from the White House play in this case?

TERRENCE PELL:

Well, it depends what the brief says. If the brief makes a clear argument and backs it up with persuasive rationale, then I think it will carry weight with the court. If the brief is constructed as a political response and in some sense represents a compromise, then it will have less weight with the court. The only way we can assess that of course is to read the brief, which we'll have a chance to do tomorrow.

RAY SUAREZ:

Professor Edley?

CHRISTOPHER EDLEY:

I agree with that, I think it's important from a doctrinal point of view if in fact the administration concedes that diversity is a compelling interest and focuses only on the mechanics of what Michigan has done. That's very important; it makes it much less likely that the court itself will reach out to give a sweeping holding that would wipe out race attentive decision making across the board, and we'll be back looking to what extent the mechanics have to be mended rather than ended.

I think that it's important to emphasize here that Michigan reverse engineers in the sense that Terry took it only in the very limited sense that they have – they have a view about the need for a critical mass of minorities in order to get the educational benefits that come from diversity, but they don't have to have tokenism, but they don't want to have rigid numerical straightjackets either.

RAY SUAREZ:

Let's go back to what you said about the president's endorsement of diversity as a value, and arguing with the mechanics. Why is that important?

CHRISTOPHER EDLEY:

It's important because if he says as the court has said in some earlier decisions that diversity may under some circumstances be a compelling interest and would justify paying limited attention to race, it's just a question of doing it carefully. If he says that, then it's a question of saying, well, where did Michigan cross the line? Should they be less mechanical in the way in which they use points? Should they give more attention to outreach and less attention to what happens in the admissions committee, tinkering of that sort — there would still be room, in other words, to design programs in universities, in police departments, in the military that would achieve the necessary diversity.

RAY SUAREZ:

Professor Swain, from what you've heard from the president in his earlier statement and his endorsement of diversity as a goal, do you think that the emphasis really now goes to how Michigan goes about achieving diversity, rather than using race as a factor at all?

CAROL SWAIN:

It seems to me that the endorsement of diversity the way the president presented it would allow for a number of different programs including something like the Texas plan, where admission is almost guaranteed to students that are in the top ten percent of their classes. And again I think the problem with the University of Michigan admissions plan was that it did not make distinctions between minorities that were affluent and those that were from lower socioeconomic backgrounds, and that what we need in place today in America is a program that takes into consideration the needs of people from disadvantaged backgrounds and working class backgrounds.

RAY SUAREZ:

Professor Allen, if the White House view is withheld, is upheld, will race be a factor in admissions at all, or is this just a question of how admissions committees should be conscious of race?

WALTER ALLEN:

I can say with certainty that race will continue to be a factor in the lives of people of color in this society. And it has operated in such a fashion and such a systematic fashion that it has disadvantaged at all stages along the way from the earliest years of schooling to college admissions.

Now, to the extent that race is taken as a factor, it obviously would be the case that race should be considered, I'd suggest. I'm leery of and not at all persuaded that the various alternatives to express an explicit consideration of race will actually yield a result, I mean, immediately after departure from the use of race as a selection factor in the University of California system we saw these precipitous and dramatic declines in the presence of black and Latino students, 50 percent, 40 percent. It's just cynical as far as I'm concerned to pretend that race is not a factor or to simply talk about a valuing of diversity without building in mechanisms that will make, that will compensate for the mechanisms that operate in this society presently to disadvantage people of color.

RAY SUAREZ:

Well, Terrence Pell, you welcomed the White House's statement, but is there any daylight between what you heard today and what your own institution is going for by helping these many plaintiffs?

TERRENCE PELL:

I think Professor Edley is right. The question is going to be how hard the Bush administration criticizes the diversity rationale, the idea that engineering a racial mix of students is sometimes a compelling state interest. I heard the president today, I heard him reject the idea of engineering racial outcomes across the board. And I heard him embracing a race neutral approach, like the Texas ten percent plan.

So, and I think, you know, it's clear where schools have used a race neutral approach they have achieved every kind of diversity including racial diversity. Although there was a drop in minority enrollment following Proposition 209, it quickly rebounded, and today in Texas and California and Florida and Washington, every single institution of higher education has a minority enrollment equal or exceeding ten percent, which is the critical mass that Michigan says it needs to get these educational benefits.

The fact is these states are achieving that critical mass without using race preferences, and I think that was the president's point today. That we can move beyond race preferences, we can have a diverse student body without judging people differently based on their skin color.

RAY SUAREZ:

I'm sorry, Professor Swain, I cut you off, I heard you trying to get in there.

CAROL SWAIN:

Yes. I think the most likely impact first of all, I reject the proposition that you're going to get lily white institutions if you move away from the present system, because there are minorities that meet the standards at the ivy league schools — true, they're not in as high percentages as we would like, but what would most likely end up with students that would normally get into Princeton or Harvard or places like that will go to Duke, they'll go to Vanderbilt, they'll go to good institutions, and perhaps they will be more successful and feel better about themselves because their SAT scores and credentials will be comparable to the white students.

CHRISTOPHER EDLEY:

Let me say a couple things. First, there will be a tidal wave of amicus briefs filed by research organizations and by higher education associations around the country that will come in strongly in a position very different from the administration's, they will argue vociferously that there is a compelling interest in racial diversity, that it cannot happen by accident, that race neutral alternatives in some circumstances will be effective, but in many circumstances will not be effective. And they will be present social science evidence demonstrating that there are educational and other benefits to the institution and to all the students from having that kind of diversity.

So I just want to say, you're right, the administration — this is one amicus briefs, there will be many, many more amicus briefs producing argument and social science evidence on these propositions. We can't, if there are race neutral ways to achieve this racial diversity, then you shouldn't pay attention to race when you're making the decisions, that's crystal clear.

The problem is if the race neutral ways won't get you what you need in order to have excellence and inclusion, then what are the tools that you could use that will be constitutionally acceptable?

RAY SUAREZ:

Professor Swain, a quick last point.

CAROL SWAIN:

I think people respond to whatever incentive structure has been in place, and the incentive structure that's been put in place in America is one that tells minorities that you can't do, that you're handicapped, and I think that there are other studies which show that minority students are closing the gap and that we'll never end up with lily white institutions if we create a fair system in America.

RAY SUAREZ:

Guests, thank you all.

WALTER ALLEN:

And we don't have a fair system in America.