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Supreme Court Rules in Favor of Affirmative Action

Aired June 23, 2003 - 10:14   ET

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

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


FREDRICKA WHITFIELD, CNN ANCHOR: We've been anticipating that as early as today, the U.S. Supreme Court would hand down decisions involving two pivotal cases, one involving the affirmative action and the University of Michigan, another, Texas sodomy.
Well, now a decision has been rendered, and we have received it here at CNN on affirmative action involving the University of Michigan's law school policy.

Let's bring in our Jeffrey Toobin to give us a better sense as to what this decision means.

Jeffrey -- you mentioned there are two cases involving the University of Michigan at issue, one involving the law school, and the other one its overall university.

Let's talk about this law school decision and what this really means. It upholds their policy?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, it does. I have to say, other than knowing that it's a 5-4 decision in favor of the university, I don't really know much more than that. But the key issue here is whether college and university admissions officials may consider race in their -- in making their decisions. The court has decided apparently yes. That is essentially a ratification of the status quo. That means that the Bakke decision, which was from 1976, which was the sort of state of the art on this decision, is still good law. It is still true.

But this is a big victory for the University of Michigan, a big victory for the civil rights community that has fought so hard for this decision. It means that the Bush administration, which argued that this was unconstitutional, the Bush administration lost on this case.

WHITFIELD: And if this means that the Supreme Court supports 5- 4, as you say, the law school's special admissions policy, is it likely that the Supreme Court is also going to render a very similar decision when it comes to general admissions or at least in their undergrad programs? Because that's the other case involving the University of Michigan here.

TOOBIN: Well, that's -- you don't know for sure. The university -- the law school case was a somewhat easier case for the university, because there was no numerical point value given for race there. It was -- there were softer standards used. It was fuzzier. The university said they considered race, but they didn't give a point system. It was harder for the university to defend the point system. It is possible, unlikely but possible, that the university could win the law school case and lose the college admissions case.

WHITFIELD: OK, well, Jeffrey, hold on a moment, because Bob Franken was actually in the Supreme Court when this decision was handed down, and he is right now on the Supreme Court steps there to give us an update on what you have there -- Bob.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, as Jeff pointed out, we have the law school case here which, as he pointed out, is probably the less specific of the cases. But it is a 5-4 decision, somewhat fractured, because there are concurrences and dissents. But they've upheld the University of Michigan law school program, saying that the program adequately ensures that all factors that may contribute to diversity are considered. And it was not just race.

Of course, we're talking about affirmative action here. This has been a long awaited decision. It's one of the most controversial issues of our time.

(BEGIN VIDEOTAPE)

FRANKEN (voice-over): The racially-charged affirmative action issue has been hotly disputed for decades.

UNIDENTIFIED MALE: United for equality, we will fight!

UNIDENTIFIED MALE: United for equality, we will fight!

UNIDENTIFIED MALE: United for equality, we will fight!

UNIDENTIFIED MALE: The opportunities for people such as myself, their hope, their dreams, they actually want to have a different life to able to help people that the opportunity will not be there. They just want to be there.

FRANKEN: Jennifer Grass (ph) says she was harmed by the affirmative action programs at the University of Michigan.

UNIDENTIFIED FEMALE: I think definitely I'm not a racist. I'm standing up for the exact opposite of racism.

FRANKEN: She challenged her rejection by Michigan's undergraduate program, saying she was turned down because a point system favoring minorities used illegal quotas. Her case was joined by another from two other white students, who attacked admission policies at the university's highly-selective law school.

It was up to the court to wrestle with the age-old issue after leaving things very confused in 1978, by its so-called Bakke ruling in the University of California case. Bakke stated quotas were unconstitutional but race could be considered.

UNIDENTIFIED MALE: I have to say that in looking at your program, it looks to me like this just a disguised quota. FRANKEN: For only the second time, the justices immediately released an audiotape of the arguments. And for every comment from them that questioned affirmative action was another, arguing Michigan was well within its rights to achieve diversity by choosing some students over others.

UNIDENTIFIED FEMALE: Because they play the bassoon, because they belong to a minority race, because in the days that when I went to law school, they are female.

FRANKEN: It was an effort, argued the university's lawyer, to reach a critical mass of underrepresented groups.

UNIDENTIFIED MALE: Critical mass is when you have enough of those students so they feel comfortable acting as individuals.

FRANKEN: But the Bush administration says "critical mass" is just another name for quotas.

UNIDENTIFIED MALE: This plan violates every standard that this court has set for the examination of racial preferences.

(END VIDEOTAPE)

FRANKEN: Now, let me point out again that there is a second case, one concerning the undergraduate program at the University of Michigan, but the ruling in this first one, which concerns the law school admissions, says, and I'm quoting now from Justice O'Connor: "The court believes that race-conscious admissions programs do not unduly harm minority applicants." Going on to say: "Because the law school's use of race in admission decisions is not prohibited by the equal protection law." And then it goes on to say that it upholds the program.

In other words, race can be a factor in an admission. It is a categorical statement. It something that is going to be a surprise to many people who thought the court was trying to undo affirmative action programs. But at least in this half of the two affirmative action programs, the court has said that race may be a factor in considering affirmative action programs to achieve diversity on college campuses, what was called in the arguments, "critical mass."

WHITFIELD: And, Bob, we know the vote was 5-4. Who do we believe the swing vote was?

FRANKEN: It could be Sandra Day O'Connor. It usually is Sandra Day O'Connor. I would point out, however, that it was one of those cases where it was quite a fractured vote. O'Connor delivered the opinion of the Court. Stevens, Souter, Ginsburg and Breyer joined Scalia. And Thomas dissented in part, concurred in part. Rehnquist dissented in part, concurred in part.

So, it's all over the map. What you end up with is in effect a cumulative 5-4 decision.

WHITFIELD: All right, Bob Franken from the Supreme Court, thanks very much.

Well, as Bob said, it's a huge victory for the University of Michigan's law school admission policies. And in the throes of it all in Ann Arbor, Michigan is our very own Jeff Flock getting a pulse of what the reaction is.

Has the news already trickled in?

JEFF FLOCK, CNN CORRESPONDENT: It is already tricking in, Fredricka, and of course,, these are the folks that it applies to. Maybe you see folks carrying signs on both sides of the issue -- that is the coalition to defend affirmative action.

I am with some of the people who it definitely applies to. This young lady is planning to apply to the law school, so she was very concerned.

You're an undergrad at the University of Michigan. You're going to apply to the law school.

UNIDENTIFIED MALE: Yes, absolutely.

FLOCK: This means you think you've got a better shot.

UNIDENTIFIED FEMALE: Absolutely. I'm one of the intervening defendants in this case, and this is a huge victory for the new civil rights movement that's been led by BAM (ph). And I just want to say that, you know, we really have a chance to protect this society, and it means that the law school will be a law school that's integrated.

FLOCK: You told me you think you got into the University of Michigan as the result of affirmative action.

UNIDENTIFIED FEMALE: Absolutely no doubt. Every black student and minority student on this campus benefits from affirmative action. And with it still being here means that we have a chance for real integration in this society,

FLOCK: Now, on the other side of the issue, Mike Phillips (ph) is with college Republicans, as well as "The Michigan Review," which is a publication not unless "The National Review." You said you want the best students to be here regardless of race.

UNIDENTIFIED MALE: I want the best students to be here. I think at this point we're still waiting to hear on the undergraduate case, which is not exactly as narrowly tailored as the law school policy. So, we'll really wait to hear how race will be impacted across the board.

FLOCK: Because, obviously, these are different policies. And in the law school, they look much more individually at each student, correct?

UNIDENTIFIED MALE: Right, exactly. I think that the law school policy is much more narrowly tailored, as the Supreme Court likes to put it with the Bakke case. And with this situation here, we are still waiting to hear on the undergraduate policy, which is what President Bush referred to as a quota and the system that is really flawed in the university.

FLOCK: Do you have a problem with the law school policy?

UNIDENTIFIED MALE: Well, we certainly would like to strive for a color blind society across the board. However, according to the current Supreme Court ruling, race can be considered to bring diversity out if the Supreme Court deems the policy benefiting the state as far as a compelling state interest.

FLOCK: And lastly, Harlan Pacheko (ph), a Hispanic student. We're debating the notion of whether you got here because you are Hispanic as a result of affirmative action. At this point, you don't know.

UNIDENTIFIED MALE: I am certainly a benefactor of affirmative action, though. I look forward to contributing to this campus every day as I speak. When certain classes call for my perspective, it's something that's priceless at this institution. To say that you have the ability to speak because of your experiences and not just be read about in a book is a great idea.

FLOCK: But at this point, the court has not yet ruled on the policy that basically allowed you to get into this university. So, this could still go either way.

UNIDENTIFIED MALE: Well, I certainly think that diversity is still a compelling state interest. That's what they just ruled in the law school case. And race is still going to be a factor in admissions policies throughout the country.

FLOCK: OK, Harlan (ph), I appreciate it. Agnes (ph), thank you so much. Mike (ph), appreciate the time.

Just some of the folks, Fredericka, who are being impacted by this ruling and will continue to be impacted by the ruling. Of course, still sticking around to see how the next case goes.

Back to you.

WHITFIELD: All right, Jeff Flock, thanks very much. Don't go far, because we're going to be going right back to you momentarily.

Let's bring in Jeffrey Toobin.

We know now that the Supreme Court has ruled in favor of the law school policy, voting 5-4 at the University of Michigan. But now we're learning that it has reversed in part the undergrad overall admission policies. What do you know about that -- Jeffrey?

TOOBIN: Well, Fredericka, I hate to sort of...

WHITFIELD: Given that you're in New York and not in Washington.

TOOBIN: I hate to sort of punt on this one, but I really -- you know, when you start talking about reversing in part and affirming in part, I think I need to know a little bit more before I say -- I just don't want to be wrong...

WHITFIELD: OK.

TOOBIN: ... about what they're saying.

WHITFIELD: Jeffrey, I'm going to ask you...

(CROSSTALK)

TOOBIN: So, accept my apologies.

WHITFIELD: Yes, no problem. Let me ask you to just hold your thought for a moment, because now we have Bob Franken, who just might have the exact wording on what this decision means for the second part of the University of Michigan's admissions policy -- Bob.

FRANKEN: OK, and, of course, we figured that it was going to be one of those things which really kind of muddied the water before it was all through. What sets the undergraduate program apart from the law school program is that there was a specific point system involved as opposed to the law school which had a more amorphous kind of approach to things. And what they're saying is, is that that point system is a violation of the Equal Protection Clause. In other words there have been complaints over the decades that a quota system was unconstitutional.

What the court is ruling, in effect, is that this was an unconstitutional use of the point system, it became unconstitutional. And also, very, very importantly, this was an opinion that was delivered by the Chief Justice Rehnquist.

So, what you have on the one hand is the point system. The undergraduate program at the University of Michigan has been struck down for that reason, but a statement that race may be considered in less specific ways in the graduate school, the law school program.

Now, what's so interesting about this -- and Jeff, I hope you're still there -- what's so interesting is you have something similar to where they were in 1978 with the Bakke decision. That was a decision that you could not have quotas, but race could be considered. It seems that the net effect of these two decisions is precisely that.

WHITFIELD: Well, Jeffrey, let me bring you into that, in fact, if you can kind of make those comparisons. Are we revisiting yet an old case again?

TOOBIN: I think Bob is right. The Supreme Court has always been uncomfortable, this court in particular, with any sort of numerical association with race, whether it was quotas, which was outlawed in the Bakke case, or here you had a specific benefit in terms of points given to African-American, Hispanic, other racial minority students. They were uncomfortable with that at the oral argument, and here, again, it seems, Sandra Day O'Connor was probably the vote who shifted. She was supportive of a general use of race as one factor among many, but she apparently was uncomfortable enough to vote against the point system that allowed -- that gave a specific numerical advantage to race.

FRANKEN: Hello.

WHITFIELD: And in fact, Bob, I see you off-camera shaking your head on that with the Sandra Day O'Connor point. Do you want to add to that?

FRANKEN: Well, actually I want to go on. I mentioned a moment ago, the Lewis Powell (ph) decision, and in the chief justice's report on the decision that was made, he goes on to say that in the case that Justice Powell was talking about, he said that the race of a particular black applicant could be considered. Could be considered. But in this particular case, the Michigan program, he went on, said that the factor of race was decisive and that was the difference. It put it over the edge as far as quotas are concerned.

Remember now, you have to juxtapose this with the law school decision that came out just a couple of minutes before this one in which the law school program, the decision was that race could be a factor. So, what you have now is a little bit of a refinement of Bakke, trying to explain how race could be a factor in an effort to clear up the confusion. But I suspect the one thing we're going to find is that it probably is going to add to the confusion.

WHITFIELD: Now, Jeffrey, I would imagine at this point that now the University of Michigan, they have these two different examples, they're got two separate rulings. They can only learn from one in terms of applying now, the one that would work, applying perhaps the law school policy that the Supreme Court is upholding now to its general admissions of undergrad students.

TOOBIN: Well, that certainly would be the idea, but you can be certain that there will be a lot of confusion in the wake of these somewhat contradictory rulings, because, you know, it's one thing to say, well, the point system is no good, but it's OK to consider race as one among many factors. In fact, you know, it may be easier said than done. Obviously we're going to have to study the opinions carefully. But there will certainly be critics who say that the Supreme Court is not offering adequate guidance to the people who have to implement these policies on the ground. Because, you know, why is race OK in a soft, amorphous way, but not OK in a point system? I mean, obviously, the opinions will attempt to answer that question, but it will certainly be a challenge and give lots of work to lots of lawyers trying to untangle what the court means.

WHITFIELD: All right, Bob, I know you want to chime in on this.

FRANKEN: Well, apparently what the difference is in the two opinions is, is that there was a specific program in the undergraduate program which was the use of race -- I'm quoting from Justice Rehnquist, Chief Justice Rehnquist's opinion: "The use of race in its current freshman admission policy, which violates the equal protection clause. In the case of the law school program, it was not the exclusive use of race, as we've all agreed, it was a less specific program."

But to show you how the history of this, there has been confusion about affirmative action from the moment that it became part of the law. I have the Civil Rights Act of 1964. The justices refer to Title 6. Here is the first part. "It is going to be an effort to stop discrimination on the ground of race, color or national origin. Stop it in connection with programs and activities receiving federal financial assistance, such as universities," of course.

In the very next clause, it says "this section states the general principle that no person in the United States shall be excluded from participation in or otherwise discriminated against on the grounds of race, color or national origin, etc., etc."

It would sound like those are contradictory provisions. It has sounded like that over the decades. It still sounds like it's something the supreme court is going through today.

WHITFIELD: All right, Bob Franken, Jeffrey Toobin, thank you very much on your briefing of the historic ruling coming from the U.S. Supreme court, two separate rulings involving the University of Michigan policies of admission in involving race based admissions at the law school. Ruling 5-4 in favor of upholding their policy. Of their undergrad program, striking down that policy.

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Aired June 23, 2003 - 10:14   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
FREDRICKA WHITFIELD, CNN ANCHOR: We've been anticipating that as early as today, the U.S. Supreme Court would hand down decisions involving two pivotal cases, one involving the affirmative action and the University of Michigan, another, Texas sodomy.
Well, now a decision has been rendered, and we have received it here at CNN on affirmative action involving the University of Michigan's law school policy.

Let's bring in our Jeffrey Toobin to give us a better sense as to what this decision means.

Jeffrey -- you mentioned there are two cases involving the University of Michigan at issue, one involving the law school, and the other one its overall university.

Let's talk about this law school decision and what this really means. It upholds their policy?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, it does. I have to say, other than knowing that it's a 5-4 decision in favor of the university, I don't really know much more than that. But the key issue here is whether college and university admissions officials may consider race in their -- in making their decisions. The court has decided apparently yes. That is essentially a ratification of the status quo. That means that the Bakke decision, which was from 1976, which was the sort of state of the art on this decision, is still good law. It is still true.

But this is a big victory for the University of Michigan, a big victory for the civil rights community that has fought so hard for this decision. It means that the Bush administration, which argued that this was unconstitutional, the Bush administration lost on this case.

WHITFIELD: And if this means that the Supreme Court supports 5- 4, as you say, the law school's special admissions policy, is it likely that the Supreme Court is also going to render a very similar decision when it comes to general admissions or at least in their undergrad programs? Because that's the other case involving the University of Michigan here.

TOOBIN: Well, that's -- you don't know for sure. The university -- the law school case was a somewhat easier case for the university, because there was no numerical point value given for race there. It was -- there were softer standards used. It was fuzzier. The university said they considered race, but they didn't give a point system. It was harder for the university to defend the point system. It is possible, unlikely but possible, that the university could win the law school case and lose the college admissions case.

WHITFIELD: OK, well, Jeffrey, hold on a moment, because Bob Franken was actually in the Supreme Court when this decision was handed down, and he is right now on the Supreme Court steps there to give us an update on what you have there -- Bob.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, as Jeff pointed out, we have the law school case here which, as he pointed out, is probably the less specific of the cases. But it is a 5-4 decision, somewhat fractured, because there are concurrences and dissents. But they've upheld the University of Michigan law school program, saying that the program adequately ensures that all factors that may contribute to diversity are considered. And it was not just race.

Of course, we're talking about affirmative action here. This has been a long awaited decision. It's one of the most controversial issues of our time.

(BEGIN VIDEOTAPE)

FRANKEN (voice-over): The racially-charged affirmative action issue has been hotly disputed for decades.

UNIDENTIFIED MALE: United for equality, we will fight!

UNIDENTIFIED MALE: United for equality, we will fight!

UNIDENTIFIED MALE: United for equality, we will fight!

UNIDENTIFIED MALE: The opportunities for people such as myself, their hope, their dreams, they actually want to have a different life to able to help people that the opportunity will not be there. They just want to be there.

FRANKEN: Jennifer Grass (ph) says she was harmed by the affirmative action programs at the University of Michigan.

UNIDENTIFIED FEMALE: I think definitely I'm not a racist. I'm standing up for the exact opposite of racism.

FRANKEN: She challenged her rejection by Michigan's undergraduate program, saying she was turned down because a point system favoring minorities used illegal quotas. Her case was joined by another from two other white students, who attacked admission policies at the university's highly-selective law school.

It was up to the court to wrestle with the age-old issue after leaving things very confused in 1978, by its so-called Bakke ruling in the University of California case. Bakke stated quotas were unconstitutional but race could be considered.

UNIDENTIFIED MALE: I have to say that in looking at your program, it looks to me like this just a disguised quota. FRANKEN: For only the second time, the justices immediately released an audiotape of the arguments. And for every comment from them that questioned affirmative action was another, arguing Michigan was well within its rights to achieve diversity by choosing some students over others.

UNIDENTIFIED FEMALE: Because they play the bassoon, because they belong to a minority race, because in the days that when I went to law school, they are female.

FRANKEN: It was an effort, argued the university's lawyer, to reach a critical mass of underrepresented groups.

UNIDENTIFIED MALE: Critical mass is when you have enough of those students so they feel comfortable acting as individuals.

FRANKEN: But the Bush administration says "critical mass" is just another name for quotas.

UNIDENTIFIED MALE: This plan violates every standard that this court has set for the examination of racial preferences.

(END VIDEOTAPE)

FRANKEN: Now, let me point out again that there is a second case, one concerning the undergraduate program at the University of Michigan, but the ruling in this first one, which concerns the law school admissions, says, and I'm quoting now from Justice O'Connor: "The court believes that race-conscious admissions programs do not unduly harm minority applicants." Going on to say: "Because the law school's use of race in admission decisions is not prohibited by the equal protection law." And then it goes on to say that it upholds the program.

In other words, race can be a factor in an admission. It is a categorical statement. It something that is going to be a surprise to many people who thought the court was trying to undo affirmative action programs. But at least in this half of the two affirmative action programs, the court has said that race may be a factor in considering affirmative action programs to achieve diversity on college campuses, what was called in the arguments, "critical mass."

WHITFIELD: And, Bob, we know the vote was 5-4. Who do we believe the swing vote was?

FRANKEN: It could be Sandra Day O'Connor. It usually is Sandra Day O'Connor. I would point out, however, that it was one of those cases where it was quite a fractured vote. O'Connor delivered the opinion of the Court. Stevens, Souter, Ginsburg and Breyer joined Scalia. And Thomas dissented in part, concurred in part. Rehnquist dissented in part, concurred in part.

So, it's all over the map. What you end up with is in effect a cumulative 5-4 decision.

WHITFIELD: All right, Bob Franken from the Supreme Court, thanks very much.

Well, as Bob said, it's a huge victory for the University of Michigan's law school admission policies. And in the throes of it all in Ann Arbor, Michigan is our very own Jeff Flock getting a pulse of what the reaction is.

Has the news already trickled in?

JEFF FLOCK, CNN CORRESPONDENT: It is already tricking in, Fredricka, and of course,, these are the folks that it applies to. Maybe you see folks carrying signs on both sides of the issue -- that is the coalition to defend affirmative action.

I am with some of the people who it definitely applies to. This young lady is planning to apply to the law school, so she was very concerned.

You're an undergrad at the University of Michigan. You're going to apply to the law school.

UNIDENTIFIED MALE: Yes, absolutely.

FLOCK: This means you think you've got a better shot.

UNIDENTIFIED FEMALE: Absolutely. I'm one of the intervening defendants in this case, and this is a huge victory for the new civil rights movement that's been led by BAM (ph). And I just want to say that, you know, we really have a chance to protect this society, and it means that the law school will be a law school that's integrated.

FLOCK: You told me you think you got into the University of Michigan as the result of affirmative action.

UNIDENTIFIED FEMALE: Absolutely no doubt. Every black student and minority student on this campus benefits from affirmative action. And with it still being here means that we have a chance for real integration in this society,

FLOCK: Now, on the other side of the issue, Mike Phillips (ph) is with college Republicans, as well as "The Michigan Review," which is a publication not unless "The National Review." You said you want the best students to be here regardless of race.

UNIDENTIFIED MALE: I want the best students to be here. I think at this point we're still waiting to hear on the undergraduate case, which is not exactly as narrowly tailored as the law school policy. So, we'll really wait to hear how race will be impacted across the board.

FLOCK: Because, obviously, these are different policies. And in the law school, they look much more individually at each student, correct?

UNIDENTIFIED MALE: Right, exactly. I think that the law school policy is much more narrowly tailored, as the Supreme Court likes to put it with the Bakke case. And with this situation here, we are still waiting to hear on the undergraduate policy, which is what President Bush referred to as a quota and the system that is really flawed in the university.

FLOCK: Do you have a problem with the law school policy?

UNIDENTIFIED MALE: Well, we certainly would like to strive for a color blind society across the board. However, according to the current Supreme Court ruling, race can be considered to bring diversity out if the Supreme Court deems the policy benefiting the state as far as a compelling state interest.

FLOCK: And lastly, Harlan Pacheko (ph), a Hispanic student. We're debating the notion of whether you got here because you are Hispanic as a result of affirmative action. At this point, you don't know.

UNIDENTIFIED MALE: I am certainly a benefactor of affirmative action, though. I look forward to contributing to this campus every day as I speak. When certain classes call for my perspective, it's something that's priceless at this institution. To say that you have the ability to speak because of your experiences and not just be read about in a book is a great idea.

FLOCK: But at this point, the court has not yet ruled on the policy that basically allowed you to get into this university. So, this could still go either way.

UNIDENTIFIED MALE: Well, I certainly think that diversity is still a compelling state interest. That's what they just ruled in the law school case. And race is still going to be a factor in admissions policies throughout the country.

FLOCK: OK, Harlan (ph), I appreciate it. Agnes (ph), thank you so much. Mike (ph), appreciate the time.

Just some of the folks, Fredericka, who are being impacted by this ruling and will continue to be impacted by the ruling. Of course, still sticking around to see how the next case goes.

Back to you.

WHITFIELD: All right, Jeff Flock, thanks very much. Don't go far, because we're going to be going right back to you momentarily.

Let's bring in Jeffrey Toobin.

We know now that the Supreme Court has ruled in favor of the law school policy, voting 5-4 at the University of Michigan. But now we're learning that it has reversed in part the undergrad overall admission policies. What do you know about that -- Jeffrey?

TOOBIN: Well, Fredericka, I hate to sort of...

WHITFIELD: Given that you're in New York and not in Washington.

TOOBIN: I hate to sort of punt on this one, but I really -- you know, when you start talking about reversing in part and affirming in part, I think I need to know a little bit more before I say -- I just don't want to be wrong...

WHITFIELD: OK.

TOOBIN: ... about what they're saying.

WHITFIELD: Jeffrey, I'm going to ask you...

(CROSSTALK)

TOOBIN: So, accept my apologies.

WHITFIELD: Yes, no problem. Let me ask you to just hold your thought for a moment, because now we have Bob Franken, who just might have the exact wording on what this decision means for the second part of the University of Michigan's admissions policy -- Bob.

FRANKEN: OK, and, of course, we figured that it was going to be one of those things which really kind of muddied the water before it was all through. What sets the undergraduate program apart from the law school program is that there was a specific point system involved as opposed to the law school which had a more amorphous kind of approach to things. And what they're saying is, is that that point system is a violation of the Equal Protection Clause. In other words there have been complaints over the decades that a quota system was unconstitutional.

What the court is ruling, in effect, is that this was an unconstitutional use of the point system, it became unconstitutional. And also, very, very importantly, this was an opinion that was delivered by the Chief Justice Rehnquist.

So, what you have on the one hand is the point system. The undergraduate program at the University of Michigan has been struck down for that reason, but a statement that race may be considered in less specific ways in the graduate school, the law school program.

Now, what's so interesting about this -- and Jeff, I hope you're still there -- what's so interesting is you have something similar to where they were in 1978 with the Bakke decision. That was a decision that you could not have quotas, but race could be considered. It seems that the net effect of these two decisions is precisely that.

WHITFIELD: Well, Jeffrey, let me bring you into that, in fact, if you can kind of make those comparisons. Are we revisiting yet an old case again?

TOOBIN: I think Bob is right. The Supreme Court has always been uncomfortable, this court in particular, with any sort of numerical association with race, whether it was quotas, which was outlawed in the Bakke case, or here you had a specific benefit in terms of points given to African-American, Hispanic, other racial minority students. They were uncomfortable with that at the oral argument, and here, again, it seems, Sandra Day O'Connor was probably the vote who shifted. She was supportive of a general use of race as one factor among many, but she apparently was uncomfortable enough to vote against the point system that allowed -- that gave a specific numerical advantage to race.

FRANKEN: Hello.

WHITFIELD: And in fact, Bob, I see you off-camera shaking your head on that with the Sandra Day O'Connor point. Do you want to add to that?

FRANKEN: Well, actually I want to go on. I mentioned a moment ago, the Lewis Powell (ph) decision, and in the chief justice's report on the decision that was made, he goes on to say that in the case that Justice Powell was talking about, he said that the race of a particular black applicant could be considered. Could be considered. But in this particular case, the Michigan program, he went on, said that the factor of race was decisive and that was the difference. It put it over the edge as far as quotas are concerned.

Remember now, you have to juxtapose this with the law school decision that came out just a couple of minutes before this one in which the law school program, the decision was that race could be a factor. So, what you have now is a little bit of a refinement of Bakke, trying to explain how race could be a factor in an effort to clear up the confusion. But I suspect the one thing we're going to find is that it probably is going to add to the confusion.

WHITFIELD: Now, Jeffrey, I would imagine at this point that now the University of Michigan, they have these two different examples, they're got two separate rulings. They can only learn from one in terms of applying now, the one that would work, applying perhaps the law school policy that the Supreme Court is upholding now to its general admissions of undergrad students.

TOOBIN: Well, that certainly would be the idea, but you can be certain that there will be a lot of confusion in the wake of these somewhat contradictory rulings, because, you know, it's one thing to say, well, the point system is no good, but it's OK to consider race as one among many factors. In fact, you know, it may be easier said than done. Obviously we're going to have to study the opinions carefully. But there will certainly be critics who say that the Supreme Court is not offering adequate guidance to the people who have to implement these policies on the ground. Because, you know, why is race OK in a soft, amorphous way, but not OK in a point system? I mean, obviously, the opinions will attempt to answer that question, but it will certainly be a challenge and give lots of work to lots of lawyers trying to untangle what the court means.

WHITFIELD: All right, Bob, I know you want to chime in on this.

FRANKEN: Well, apparently what the difference is in the two opinions is, is that there was a specific program in the undergraduate program which was the use of race -- I'm quoting from Justice Rehnquist, Chief Justice Rehnquist's opinion: "The use of race in its current freshman admission policy, which violates the equal protection clause. In the case of the law school program, it was not the exclusive use of race, as we've all agreed, it was a less specific program."

But to show you how the history of this, there has been confusion about affirmative action from the moment that it became part of the law. I have the Civil Rights Act of 1964. The justices refer to Title 6. Here is the first part. "It is going to be an effort to stop discrimination on the ground of race, color or national origin. Stop it in connection with programs and activities receiving federal financial assistance, such as universities," of course.

In the very next clause, it says "this section states the general principle that no person in the United States shall be excluded from participation in or otherwise discriminated against on the grounds of race, color or national origin, etc., etc."

It would sound like those are contradictory provisions. It has sounded like that over the decades. It still sounds like it's something the supreme court is going through today.

WHITFIELD: All right, Bob Franken, Jeffrey Toobin, thank you very much on your briefing of the historic ruling coming from the U.S. Supreme court, two separate rulings involving the University of Michigan policies of admission in involving race based admissions at the law school. Ruling 5-4 in favor of upholding their policy. Of their undergrad program, striking down that policy.

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