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LIVE FROM THE HEADLINES

Interview With Laurence Tribe, John McGinnis

Aired June 23, 2003 - 20:01   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

PAULA ZAHN, CNN ANCHOR: The U.S. Supreme Court issued a landmark decision today on affirmative action but the ruling is not likely to end the debate over race in America.
The court ruled that colleges can give minorities preferential treatment in the admissions process but it declared that a racial point system used at the University of Michigan goes too far.

Joining us now to help sort things out is our own legal analyst Jeffrey Toobin. Good evening, Jeffrey, good to see you again.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Paula Z., good to talk to you.

ZAHN: And, I hope we can hear you with that car racing by, perfect timing there.

TOOBIN: Right.

ZAHN: First of all, walk us through what the implications are of these rulings today.

TOOBIN: Just enormous implications, Paula. What happened was the court approved the idea of affirmative action. As you said, they said that the use of race was permissible to support the goal of diversity. That was the main holding of the main decision.

However, when they looked at the admissions process for the undergraduate college they said that the point system that gave every minority applicant an extra 20 points on 150-scale they said that's no good.

That is not the kind of individual attention that you need to do in the admissions process. That was rejected. Now, universities have to try to figure out what is allowed under these new rules.

ZAHN: Well, for a moment let's talk about what they're going to do about that, Jeffrey. They're not going to have the liberty nor the time to comb through 20,000 essays and read them line by line, right, to help make a decision and add that into the equation?

TOOBIN: That's what makes this decision so difficult for universities to follow because the law school, which the court did approve, had an individual assessment system and the five justices, led by Justice O'Connor, she said individual assessment where you consider race is what is required and that was just a school with 300 new students each year.

Consider how that applies in an undergraduate setting where at the University of Michigan they have 25,000 applications. Can they assess them all individually? That seems to be what today's decision requires.

ZAHN: Well we're going to bring in some company now with you, Jeffrey, because I know you're feeling so lonely out there in front of the Supreme Court tonight. Although the high court's ruling involves policies at the University of Michigan, the decision is sure to have an impact on college admissions policies across the country.

We're going to take a look at that impact with a panel of experts, Jeffrey back from the Supreme Court again; Laurence Tribe, a constitutional law professor at Harvard University joins us from Watertown, Massachusetts tonight; and here with us in New York is John McGinnis, a constitutional law professor at Northwestern University, welcome all.

Professor Tribe, I'm going to start with you this evening. You heard a little bit of what Jeffrey talked about, universities having to wrestle with now as they try to better understand the Supreme Court ruling. What does it mean to you, your university and others trying to understand tonight?

PROF. LAURENCE TRIBE, HARVARD UNIVERSITY: Well, the court I think did a great deal today. Not only did it approve the general idea of taking race into account in an individualized way in order to achieve a more integrated, multiracial class because we live in a multiracial society, but it also upheld the particular program at the University of Michigan Law School which, though it has only 300 students in the entering class, picks them from a group of thousands of students.

And what the court basically said was that doing it that way, respecting the right of each applicant to be considered as a whole individual but recognizing that race still matters and making it matter in a positive way, may involve more administrative difficulty, may involve more expense, may involve hiring more admissions officers when you have a huge class the way the undergraduate school at Michigan did.

But it said that efficiency is not a good enough reason to use a mechanical system that gives an arbitrary number of points for being a member of a minority. It may cost more and be harder to do it right but the goal of achieving some semblance of a racially integrated society after all of the history that we've been through is an important enough goal to make it worthwhile and the court basically left the policy issue of whether states would go through that difficulty up to the states.

The court didn't say that any state has to use race as a positive factor in admissions. States can go the way of California, though I hope not many will, by adopting a flat rule saying you can give preferences to alumni kids. You can give preferences based on geography but no preferences based on race. A state can do that but a state is now free also to use the two models the court held up.

One of them was the University of Michigan Law School and the other was the Harvard approach, which is very similar, and which Justice Powell a quarter of a century ago held up as the example of how to do it the constitutional way.

ZAHN: Let's bring Mr. McGinnis into this conversation now, a lot of attention being paid to the swing vote of Sandra Day O'Connor. What is it that we should read into what she had to say in this case today?

PROF. JOHN MCGINNIS, NORTHWESTERN UNIVERSITY: Well, Justice O'Connor was the swing vote, the decisive vote in this case and it was her decision, I think, to go back to a practice that at least I think that has really been discredited in the last century of the court deciding what kind of racial discrimination and ethnic discrimination is reasonable rather than to enforce a constitutional rule banning discrimination in all but the most extraordinary circumstances.

I think this case it would be more understandable if it were really about helping victims and people who are in some sense victims of discrimination. But make no mistake these preferences can go to the children of the well to do. They will go to immigrants who already enjoy the bounty of this country and then get this additional advantage even though they've not been discriminated against just because of their ethnicity or their surname.

ZAHN: So, wait are you saying you still see this as one giant loophole?

MCGINNIS: I see this as a great victory for those who would like to pursue a policy of racial and ethnic preferences at schools, so I do not -- I really see the distinction between individualized determination, while it can be important in some cases, still allows a school to engineer a policy which has very substantial preferences for people on the basis of their race and ethnicity and so violates the Constitution's promise that the state will not take race into account except for really extraordinary circumstances.

ZAHN: And, Jeffrey Toobin, I'm only going to give you 20 seconds to do this and give the rest of your colleagues the same. Just a final thought on what this might mean in the workplace ultimately.

TOOBIN: How much has changed in 25 years? The biggest factor, it seemed to me, in persuading Justice O'Connor to decide the way she did, was that big business, General Motors, Microsoft, 3M, and the military, retired military officers said we support affirmative action. Affirmative action has become a mainstream cause and that's why Sandra Day O'Connor, a mainstream justice, voted the way she did.

ZAHN: Professor Tribe, a closing thought here.

TRIBE: First of all, although a lot of people didn't notice it, it wasn't just Justice O'Connor. Even Justice Kennedy, making it 6-3, said that the situation is extraordinary enough to make it OK to consider race, not just to overcome past discrimination directly, which is what Professor McGinnis is talking about, but in a forward looking way to get a more integrated society, and it is an extraordinary need that we face in business and in the military in a multiracial world to get beyond our more binary uni-racial past.

ZAHN: Professor McGinnis, you get the last 20 seconds here tonight.

MCGINNIS: The court did leave open the fact that people can go back to their state legislatures and ban this kind of discrimination. It is not the case that most people favor preferences. It is the case that business and university elites do and so it's back in the hands of our citizens.

ZAHN: Thanks so much, gentlemen, all our members of the roundtable tonight, Professor Laurence Tribe, Professor John McGinnis, and our own Jeffrey Toobin, glad to have all of your insights.

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