The MacNeil/Lehrer Report; Bakke Reverse Descrimination Case

ROBERT MacNEIL: Good evening. Journalists like to throw phrases like "historic day" around rather casually. But at least one event today will probably live in the history books. It took place in the U.S. Supreme Court in Washington, where the nine Justices heard oral arguments in the Bakke reverse discrimination case. What the Court finds, based on today`s arguments, could be the most important civil rights decision since 1954, when the Court outlawed racial segregation in schools. It might also overturn much so-called "affirmative action" -- the attempt to right historic wrongs to blacks and other minorities by giving them favored treatment. Tonight, with our own distinguished observers, we explore today`s arguments and how they may affect the Court`s decision. Jim?

JIM LEHRER: Robin, the bare facts of the Bakke case are relatively simple and well known. Allan Bakke, who is white, applied for admission to the University of California at Davis Medical School in 1973 and again in 1974. He was turned down both times. The school had a minority admissions policy which set aside sixteen of the one hundred new-student places to disadvantaged members of racial minorities. Bakke filed suit alleging he was more qualified by virtue of prior scholastic record, testing scores and other factors than minority students who were accepted.

He charged that he was denied admission solely because of his race, and thus was a victim of so-called "reverse discrimination." The California Supreme Court agreed with him, and the University of California appealed to the U.S. Supreme Court, and that brings it back to today, to the high court`s crowded courtroom and to Lyle Denniston, a member of that crowd. He is the Supreme Court reporter for the Washington Star who has commented on Supreme Court matters before on this program.

Lyle, it was billed as an historic occasion. In dramatic terms, did it measure up?

LYLE DENNISTON: It certainly did, Jim. The courtroom was filled and overfilled; the hallways and the streets and sidewalks outside were filled well in advance. Some persons waited overnight to get in -- that is always a strong indicator that the public cares and that history may be noticing too. In addition, inside the courtroom you had the usual number of luminaries; for example, today Mrs. Earl Warren, the widow of the late Chief Justice, was there. There were reminiscences of the 1954 decision, which Robin has mentioned. Of course, Thurgood Marshall, who won that case, was on the bench; James Nabrit, who won another of those cases, was in the audience; and of course there was a black Solicitor General of the United States arguing one of the main points in the case, which is-the government`s view. And it was not a tense day, it was a relaxed day, except when somebody tipped over a file of books next to Justice Rehnquistand interrupted Archie Cox`s elegant and eloquent presentation. But it was truly an historic day.

LEHRER: Did the justices do anything in particular in honor of the occasion, anything that they normally do not do in hearing case like this?

DENNISTON: No, I didn`t hear anything that I thought was unusual, nor did I see any behavior exhibited that I thought was in recognition. For example, when the Chief Justice came on the bench and announced the case he said, as he always does whenever any case comes up, "The first case on today`s calendar is Number 7b-811," and from there on it proceeded very much as it normally does. The argument was frequently, and sometimes aggressively, interrupted by the members of the Court, but that`s not unusual in a case like this.

LEHRER: What about the three lawyers? The layman would probably sit back and say, "Look, this is a big deal today," and you would expect to hear three great orators going at things in a very historic way in honor of the historic occasion. You mentioned Archibald Cox and the Solicitor General, who is Wade McCree, who spoke for the government, and then the San Francisco lawyer Reynold Colvin for Bakke. Did they rise to the occasion?

DENNISTON: Oh, I think they did. My own reaction, very subjective, was that each of them did very well, given what he had come to the Court to do. In other words, all of them were good lawyers arguing their cases for their clients. In essence, from the personality side, we had two orators and one really quite competent lawyer. Cox mostly orated, McCree did almost nothing but orate -- he had a very brief time, only fifteen minutes -- but Colvin argued his case as if he were arguing at a trial level court.

He stuck to the facts, he argued "my client was discriminated against, and my client deserves to be treated properly."

LEHRER: Much like he was talking to a jury.

DENNISTON: Very much so; very much so.

LEHRER: All right, thank you, Lyle. Robin?

MacNEIL: One of the witnesses in that jammed courtroom scene today was there to watch the proceedings especially for us. He is Dick Howard, a University of Virginia Law Professor, a close student of this Supreme Court who`s currently writing a book about the Burger Court. Professor Howard, from the legal standpoint, were there any surprises in the arguments today?

A.E. DICK HOWARD: Robin, no, I think the arguments put to the Court tracked the briefs very closely. It`s characteristic of arguments in the Supreme Court that they rarely turn up extraordinary surprises on which a case might turn. I think the oral arguments give the Justices an opportunity to focus on those aspects of the record or the legal arguments about which they might have particular question; having read the briefs, having sifted the arguments, they may then decide they would like to pinpoint particular issues, and as a result you find that oral arguments tend therefore to shape and define the issue somewhat but rarely add very much to them.

MacNEIL: So all the Justices would have studied this case extensively before sitting down to hear these oral arguments today, would they?

HOWARD: They study all the cases before they mount the bench, but given the amount of pre-argument publicity, which I think unprecedented, that this case has received, I suspect that they and their clerks have burned additional nighttime hours looking at the briefs in this case.

There were fifty-eight amicus briefs filed, and one could only hazard a guess as to whether they pored over every page of every brief; but certainly they read very deeply into those briefs and into the record.

MacNEIL: Could we go through one at a time the three presentations today and could you tell me, starting with Archibald Cox speaking for the University of California, what struck you as most significant in his oral argument?

HOWARD: Archibald Cox` performance today was vintage Cox. He`s appeared before the Court many times in many capacities, and today you had the Harvard law professor, which he is, in effect conducting a seminar on constitutional law. One could almost imagine the nine Justices becoming nine students who were meant to respond to the arguments as Archibald Cox developed them. He tended to reduce the case to rather broad policy propositions. He was not fact-oriented in his presentation. He was trying to make essentially three points: first, that there has been extraordinary competition for places in medical and law schools, for professional schools in this country; secondly, that there has been a legacy of discrimination, societal, in education and otherwise, which has severely handicapped blacks and other minorities who would seek places in professional schools; and then finally -- and I think he drove this point home very hard -- that talk of other alternatives, non-racial ways of increasing minority enrollments in professional schools, are simply not viable; that these alternatives, some of which were suggested by the California court below, simply won`t work. So the conclusion he drew from all this was in effect one of "don`t get federal courts into the business of overseeing admissions decision insofar as they attempt to effectuate affirmative action programs." I think Cox, who of course is himself a member of a law faculty, was urging that faculties who are close to the problem be allowed to experiment, to innovate, to try to deal with the problem as it develops and not have courts breathing down their necks as they`re trying to do that.

MacNEIL: What about Mr. Bakke`s attorney, Reynold Colvin of San Francisco? What struck you as most significant in his presentation?

HOWARD: His approach to the case was, I thought, markedly different from that of Archibald Cox. I concur with Lyle Denniston that what we saw in action when Mr. Colvin mounted the podium was in effect a trial lawyer, that I think he was trying to put the case into human terms. He was not so much concerned with the broad constitutional questions and the nuances of Fourteenth Amendment law; he was presenting the Court with a young man, Allan Bakke, who had tried to get into a medical college, had persevered, had twice been rejected, had scored high on the numerical tests, had good grade point average in his undergraduate work, and not withstanding favorable comments from interviewers at the medical school who talked with him, had nevertheless been rejected -- in favor, as Bakke would characterize it, of people who objectively were less well qualified. And I think the attorney was seeking to present this as a simple case of injustice which the law ought to rectify.

MacNEIL: And the Solicitor General, Wade McCreeWhae was most could I interrupt that for a moment? I`m curious to know; there were fifty-eight friend-of-the-court briefs filed, you said. Why does the administration, the government of the day, get a sort of better hearing than the others; because it was there as a friend of the court, and it gets to stand up and make an oral argument. Why is that?

DENNISTON: Well, I-suppose that`s an exception to equal protection of the law, is that it`s fairly easy to file an amicus brief, but it`s very hard indeed to be given permission to add your oral statement to the petitioner and respondent in a case. The exception is often made on behalf of the government. I think the Court takes the view that the Justice Department has a peculiar public interest in the case and therefore that should be brought to bear.

MacNEIL: Does that mean their argument is given more weight, simply because they`re there in person?

DENNISTON: I don`t think the argument is given more weight, I think the fact of the matter is that the government`s brief is oftentimes unduly influential. The Justice Department has very talented attorneys at work and I know that when one reads the briefs in a case the Solicitor General`s brief is frequently rather better crafted because it`s done by people who are regularly before the Court. The problem with so many briefs that you see in the Supreme Court is that they`re written by people who have no . long-time experience with practice before that tribunal. We don`t have the nineteenth-century tradition of a handful of lawyers who are the ones who argue most of the cases.

MacNEIL: Well, going back to the Solicitor General`s brief today, what struck you as most significant in that?

DENNISTON: Well, I think the Solicitor General was trying to drive home one particular concern. He hopes that the case will not be viewed simply as having impact on higher education. The Bakke case itself is of course one that turns on a medical school`s admissions policies. It`s fairly easy to see how that would affect other professional schools and, arguably, higher education generally. What concerns the government and the brief is ridden with this concern -- is that somehow the Court`s decision, if it in any respect appears to favor Bakke and in any way throws doubt upon affirmative action programs in universities, may also jeopardize other kinds of affirmative action programs, either because the precedent may be made which could be argued in court, or more likely because of the political climate it would create.

MacNEIL: I see. Well, thank you very much. Jim?

LEHRER: We also asked another constitutional law expert to do some special research for us on this story. He`s Jack Murphy, Professor of Law at the Georgetown University Law Center here in Washington. Based on your reading of the briefs and the law, what do you see as the hard-nut issue the Court must finally come to grips with in this and decide?

JACK MURPHY: Well, if the Court decides to go on the constitutional issue and passes up the possibility of deciding on the statutory issue under the Civil Rights Act, it seems to me that they probably will have to reach the question of whether or not there is any racial classification that is not invidious, whether in fact there are such things as "benign" racial classifications.

LEHRER: You`ll have to explain that.

MURPHY: Well, you know, Jim, historically in these cases the Court has talked about "invidious" discrimination, where race has been used as a factor adverse to the member of that race. This appeared in the nineteenth century and even into the twentieth century in the form of express statutory declarations that blacks or Chinese or others easily marked by race, color or creed could not participate in certain things -- juries, couldn`t vote, and so forth and so on. In the twentieth century as this matter has advanced and statutory expressions of discrimination have disappeared, that`s been replaced by discrimination based in the actual practices of the government which don`t announce themselves loudly in statutory declarations or executive policy statements but which occur and which are the conscious result of policy decisions by the government that these people, whoever they may be, will be kept out of the enjoyment of certain benefits. Those two categories are...

LEHRER: Now apply that to the Bakke case.

MURPHY: All right. Those are invidious kinds of discrimination. In this case you`ve got the government saying that a group historically displaced, rejected, oppressed or otherwise affected negatively by government policies and by private discriminatory practices should be given a shot at the opportunities available in higher education: medicine, law, and other examples you could think of. In other words, this is a remedial effort on the part of the University of California, as it has proved to be a remedial effort on the part of many other professional schools. The question is, is it permissible to use race in that context, where you`re not trying to discriminate against and to oppress by, but rather you`re trying to uplift and assist and aid and so on.

LEHRER: Even though it might in effect discriminate against the Allan Bakkes of the world, in other words, the white majority in this case.

MURPHY: Exactly. And that is clearly the effect on a man like Mr. Bakke. He is apparently on this record clearly displaced out of consideration by the admissions committee, of racial factors which militated in favor of Mr. Black Citizen and against Mr. Bakke. Now, no one knows the answer to this question in the long run. The problem, I think, is that no one is sure down the road what the acceptance of a notion of state-sponsored benign discrimination -- favorable discrimination -leads to. Other minority groups -- Jewish organizations, Polish organizations, Hellenic organizations, Ukranian organizations -- have said before the Court that they are implicitly concerned with what the long-range ramifications of an approval, constitutionally, of benign classifications may be. These groups, many in homes of their origins, suffered discrimination in a fashion which was rationalized as benign, and they`re understandably wary of any kind of dividing lines drawn by law.

LEHRER: And those groups and others have filed friend-of-the-court briefs favoring the Bakke position, have they not?

MURPHY: Well, at least disapproving the notion that this is a case in which benign discrimination should be affirmed, and I think suggesting more broadly that in any case the Court must be extraordinarily careful when it uses race as a basis upon which to say some will have and some will not, no matter how innocent the motivation appears to be.

LEHRER: Okay, thank you. Robin?

MacNEIL: Let`s go back into the courtroom. Professor Howard, as a student of this Court listening. there today, were there any hints in the comments that the Justices made during these presentations, or the questions they asked, of what might be the drift of their individual minds?

HOWARD: Well, Robin, it seemed to me that the Court was unusually active in putting questions today. Of course, there are nine Justices and if they all ask questions they eat up counsel`s argument time. But I think one could sense certain aspects of the case which were of more interest to one Justice than another. I think there was for one thing an appearance of a good deal of splintering in the Court as I read it. There was no one point on which the Court appeared to unify as that point on which the case would very likely turn. There were a number of questions which appeared to probe the peculiarities of the Davis program. One of the things we`ve speculated about is whether somehow the Court might decide...

LEHRER: That`s the whole admissions policy at the University of California at Davis.

HOWARD: That`s correct. The special admissions program which set aside sixteen places out of a hundred for minority students is a bit more of a target for those who oppose affirmative programs than the more flexible programs that you find at a number of universities. And I noticed a number of Justices -- the Chief Justice, Justice Powell, Justice Rehnquist among others -- raising questions about, for example, a two-track system. Justice Powell seemed to be pushing the line of questioning, from which one might infer that the separation of candidates into two separate groups which would not be compared with each other -- the special minority applicants who might meet more relaxed standards and the regular applicants who had to meet more severe standards -- on this the case might turn. It is conceivable, for example, that the Court would say that a two-track system or that sort of approach to minority admissions would not pass muster, and yet at the same time conclude that race as a factor, perhaps a weighted numerical factor among a number of factors, would be permissible.

MacNEIL: Lyle Denniston, anything strike you particularly in the demeanor of the Justices, the questions they asked, the points they were pursuing?

DENNISTON: Well, Robin, it seems to me that most of the members of the Court, certainly an evident majority of the Justices, are concerned very much about the numbers question, that is, the quota issue. Can you set aside a specific number of opportunities in public programs and reserve those for persons of an identifiable class -- that is, in this instance, black persons or other minorities? The government, we all know, tried to avoid the issue of quotas in this case and said this is not a quotas case, whatever else it is. But the Court seemed terribly concerned, not solely about the number sixteen out of a hundred, but can a university give fifty places out a hundred to the blacks, or can it in fact give one hundred places to blacks, or indeed to whites? At one point Mr. Justice White said to one of the lawyers, "You wouldn`t be arguing that we should authorize a program where there was a hundred percent quota system," which meant that only one class of people could get into a medical or law school. I think the quota issue is really central to this case. Cox has argued all along that you cannot settle this case without dealing with numbers. Civil rights lawyers have argued all along that this is a numbers case, pure and simple numbers case, and it must be decided on that basis. Sooner or later somebody has to assign places, and you can only do that with numbers.

The other issue, Robin, that intrigued me, because I`ve been waiting to see whether the Court was looking for a way to avoid deciding the Bakke case, this Court doesn`t like to deal with major constitutional controversy because it has a perception of a different role in our society of the judiciary than, let`s say, the Warren Court did. And a clear majority of the Court was interested in the possibility of bucking this case back to California`s courts for decision on the Federal Civil Rights Law implications of this, thus avoiding any discussion or any resolution, ultimately, on the question of whether the federal Constitution`s guarantee of equality was in fact violated as the California court said it was.

MacNEIL: That`s interesting; it could be very significant. Dick Howard, did you sense a similar -- did you read it the same way, a clear majority asking questions that led to that conclusion?

HOWARD: Robin, I may have been asleep at the switch, but I was not as impelled by that point as Lyle is. The discussion of the Civil Rights Act certainly was one of the questions put, and by several Justices, to day, but I came away with an intuition which may be worth no more than that: that the Justices were not leaping at opportunities to avoid the merits in this case. I had the sense that they were prepared to say something about the Fourteenth Amendment, something about equal protection, and the central concern appeared to be how broad or how narrow that decision might be. There certainly are a number of grounds on which the` Court could duck this case if they saw fit. There was talk today about a state constitutional amendment which was adopted in California after the Bakke case was decided there. The government has suggested that the record in the case is inadequate and the case ought to be remanded for further fact finding. All these are ways out, but I have a sense that in the three years that`s passed since the DeFunis case that the Court...

MacNEIL: Which was a similar challenge of an affirmative action at the University of Washington.

HOWARD: That was a 1974 decision in which the Court ducked the issue there on the grounds of mootness because DeFunis was about to graduate from law school. And I think the Court was somewhat criticized for what seemed to be a tenuous way out of that case. Now we`ve gone three more years; I think the mood of the civil rights movement is much more concerned than it was three years ago, agitation has mounted, people have made so much of the Bakke case that I just wonder whether the Court can this time around simply avoid the larger issue entirely.

MacNEIL: Thank you. Jim?

LEHRER: Well, let`s pick up that point. As you say, there has been a lot of public debate, and one of you all said a while ago it was unprecedented, really, the public debate going into this. How could a court, even

the Supreme Court, ignore that? Is it possible, Jack Murphy, for the Court not to consider that fact?

MURPHY: I think -- or I like to think -- the Court is the least political of the three branches of government, but we`d all be very foolish to think it was not political insofar as it exercises power. But it is, in one of my favorite phrases, relatively free of the majoritarian process. If you went to a picnic on July Fourth...

LEHRER: The "majoritarian process." Okay. (Laughing.)

MURPHY: If you went to a picnic on July Fourth and asked people there what they thought of the text you were reading and you read them the First Amendment, maybe fifty percent of them wouldn`t agree with it and twenty- five percent wouldn`t know and twenty-five percent would definitely agree. Well, it`s against that possible majoritarian oppression of rights that the Court is free, politically, to stand. So while sure, they`ll take into account expressions of concern in various forms -- the newspapers, speeches of executive officials and so on, and demonstrations in the street, presumably -- I don`t think, and I hope it would not, that these things should influence the Court, and while it ...

LEHRER: But will it?

MURPHY: I don`t think it will. LEHRER: Any thoughts on that, Lyle?

DENNISTON: I think the Court is acutely sensitive to the fact that this is a very major case and very widely debated and deliberated by the public before it came to the Court. I certainly don`t think that this Court feels obliged or driven to decide this case on constitutional questions.

LEHRER: But do you think it will drive them to decide it, period?

DENNISTON: I think they`ll have to dispose of it in some fashion. I don`t think this Court is going to be influenced by the degree to which this has become a great public controversy because this Court -- certainly a majority of this Court in the last three years -- has avoided involvement in a number of civil rights issues by saying these issues should go to the political branches, that is, Congress and the President, or the state legislatures. And I would stress again what I said earlier in the program, which is that this Court lacks a certain amount of institutional self- confidence. They would like to think that the graver issues of society should now be resolved elsewhere than in the courts. And so to make this a great controversy doesn`t mean it`s going to mean a great decision.

LEHRER: Okay. I`m going to begin with you, and I`ll warn the two of you I`m coming to you in a moment. What`s your prediction as to how the Court`s going to go on this?

DENNISTON: Well, I think I`ve probably already tipped my hand on this. I would have two predictions: one, I think the strongest possibility is that they will send the case back to California and say, "Look at it again under the Federal Civil Rights Act of 1964" -- that is, the equal educational opportunity part of that law. I think the other possibility is that they will in fact rule on the constitutional question by saying you can take race into account, but for heaven`s sake stay away from quotas.

LEHRER: Your prediction in ten seconds, Mr. Murphy.

MURPHY: Ten seconds will produce this answer: they will affirm the Supreme Court of California, but on the limited grounds of this case it`s an arbitrary use of numbers distinguishing the applicants on the basis of race. They will leave open the possibility of flexible racially oriented, racially conscious admissions processes.

LEHRER: Dick Howard, you have even less than ten.

HOWARD: Unless they duck it altogether, I think they`ll draw the line between what some people call quotas and other people call "race as a factor."

LEHRER: All right. Robin?

MacNEIL: Thank you very much, all of you, and good night, Jim.

It`s obviously going to be quite a few months before we hear that decision. When it comes, we`ll talk about it. That`s all for tonight. Jim and I will be back tomorrow night. I`m Robert MacNeil. Good night.