The MacNeil/Lehrer NewsHour

INTRO

ROBERT MacNEIL: Good evening. In the news today, the Supreme Court struck down an affirmative action plan for black teachers. South African military forces raided three neighboring nations. The White House called on Syria to stop harboring top terrorists. We'll have details of these stories in our news summary coming up. Jim?

JIM LEHRER: After the news summary, Lyle Denniston of the Baltimore Sun and advocates from each side analyze the Supreme Court's affirmative action decision. And representatives of Botswana and South Africa debate the South African raids. News Summary

MacNEIL: The Supreme Court today struck down a Jackson, Michigan affirmative action plan that protected the jobs of black schoolteachers. In a five to four decision, the court said the plan was unconstitutional because it was not based on convincing evidence of prior racial discrimination by the school board. Under the Jackson plan, white teachers with more seniority could be fired, when black teachers were kept. But the court based its ruling on narrow grounds and did not buy the Reagan administration argument that only actual victims of bias should receive preferential treatment on the job. For reaction in Jackson, we have a report from John Hewett of station WLNS in Lansing, Michigan.

JOHN HEWETT [voice-over]: For Wendy Wygant, the issue was not so much affirmative action, but job security. At least in the beginning. Five years ago, she and seven other teachers were laid off under a policy adopted by the Jackson school district with union support in 1972. They have since been rehired, but that clause guaranteed that the percentage of minority teachers would be protected from layoffs. Which meant black teachers were being hired while whites with greater seniority were being laid off.

WENDY WYGANT: It just seemed wrong. It was based on all the wrong reasons. And that's what the court said. You -- there was no compelling reason.

HEWETT: While the Supreme Court decision is being celebrated by the eight teachers involved, here at the Jackson school administrative offices, they don't quite know how to react. But they admit it was a heck of a way to start a Monday morning.

Superintendent: Very surprised. The day didn't go as I had planned it.

HEWETT [voice-over]: Although they haven't had a chance to review the high court ruling, Pierson believes the Jackson school district will not be affected, because the decision deals with layoffs and not hiring policies. But next month the Jackson schools could be out thousands of dollars when Wendy Wygant and company sue for lost wages and seniority.

MacNEIL: The court made two decisions affecting aerial surveillance. It ruled that police do not need search warrants before using airplanes to look for marijuana grown in fenced-in residential yards. The court also ruled that to enforce clean air laws, federal regulators may use photographs taken from airplanes flown over manufacturing facilities. Jim?

LEHRER: South Africa staged military raids today against alleged guerrilla targets in the capital cities of three African nations: Botswana, Zimbabwe and Zambia. We have a report from Michael Buerk of the BBC.

MICHAEL BUERK [voice-over]: The South African helicopters came over the Botswana border in the dark and by dawn were hovering above this hostel, just outside the capital. They opened fire with automatic weapons, riddling nearly every room. One helicopter came so low, its rotors chopped off branches of this tree. Another landed and let the soldiers run out and open fire from the ground. More helicopters circled an army barracks half a mile away, warning soldiers there through land hailers not to interfere. The attack on the Zimbabwe capital was the first on that country that has been acknowledged by Pretoria. South African commandos came into the capital by road and bombed an office in the center and a house in the suburbs. Both, South Africa said, were ANC offices and hostels. Shortly afterwards, South African fighter planes struck into neighboring Zambia and attacked an ANC center ten miles from the capital, Lusaka. Two people were killed and several injured. President Kenneth Kaunda was outraged.

KENNETH KAUNDA, president, Zambia: My first task this morning is to condemn in the strongest terms possible this dastard, cowardly action.

LEHRER: South African authorities said the attacks were against headquarters and training facilities of the African National Congress, the major anti-South African government guerrilla force. The spokesman was Information Minister Louis Nel.

LOUIS NEL, information minister, South Africa: We didn't attack Lusaka, we didn't attack Gaborone. What we did was to attack certain clearly identified ANC targets within those cities. And what we have done was not an attack of any of these countries, but an attack on a specific ANC target.

LEHRER: Derogatory rebukes from nations around the world, including the United States. White House spokesman Larry Speaks delivered the one for the U.S.

LARRY SPEAKS, White House spokesman: We vigorously condemn these attacks by South Africa. Our diplomacy in South Africa has been aimed at stopping cross-border violence. Such efforts have had results. We would note that senior officials of South Africa and its neighbors have held regular and productive consultations on issues of security and respect for international borders. We believe these military actions to be particularly inexplicable in the light of ongoing efforts among those neighbors to maintain good working relations and communication on security problems.

MacNEIL: Both the United States and Israel criticized Syria today for harboring terrorists. The White House said that despite its denials, Syria still harbors the suspected terrorist, Abu Midal. White House spokesman Larry Speaks urged Syria to expel Midal, who is wanted for masterminding attacks on Rome and Vienna airports.

Israeli Prime Minister Shimon Peres accused Syria of serving as the mothership for terrorist groups. Speaking in Parliament, Paris claimed that President Hafez al-Assad was using Palestinians as instruments to establish Syrian dominance of the Arab world.

LEHRER: A Soviet nuclear official said today the damaged Chernobyl reactor is no longer emitting radioactivity into the air. He also said the government began an investigation within hours after that accident, which seems to contradict earlier official statements. They had said two days elapsed before reliable information reached Moscow. As for the future, the official said the Soviet government would continue to put its emphasis on safety at the plants, rather than construct containment buildings around reactors.

MacNEIL: In Cokeville, Wyoming, nine children are still in the hospital, two in critical condition, after Friday's bizarre hostage incident at an elementary school. Sixty-five people were injured when a couple took 150 children and adults hostage, then died in an accidental explosion and suicide. The biggest concern now is how to repair the emotional damage in the children. We have a report by Derek Marquess of KBYU TV in Provo, Utah.

DEREK MARQUESS [voice-over]: The emotional healing process began Sunday afternoon as children, parents and teachers walked through the rubble of their first grade classroom. Bomb technician Richard Haskell says it's hard to believe no children died in Friday's gasoline-bomb explosion.

RICHARD HASKEL: Unbelievable. You look inside of that room in there, and you wonder why there isn't 150 kids laying in there dead.

MARQUESS [voice-over]: Most of the children's physical injuries were minor, but the emotional scars could take longer to heal.

MIKE THOMPSON: People started to cry and ball, and some of them got sick. And I sat on the table, and then I started to rub my eyes, and then it blew up, and when I opened them back up there was fire all over. So I just ran out of there.

MARQUESS [voice-over]: First grade teacher Jean Mitchell taught in the classroom that was blown up. Two family members were with her inside.

JEAN MITCHELL, teacher: I know that I need to go back, even though I don't want to. I know I need to go back so that my first graders can go back and -- and start again. I know that we need to go -- I think we need to go back this year.

MARQUESS [voice-over]: Psychologists have suggested students be returned to classes as soon as possible. School principal Max Excell says plans are underway for individual and group counseling.

MAX EXCELL, principal: We're hoping to get the kids back into the school before the summer vacation, because we think they need to be back in the situation for their own mental well-being.

MacNEIL: In Portland, Oregon, one of the two teenagers who survived the Mt. Hood climb had to have both legs amputated below the knee. Nine others died after a freak snowstorm trapped them on the mountain. Of the two who survived, the 16-year-old girl, Britton Clark, was reported in good condition and largely out of danger. But for Giles Thompson, also 16, doctors said it was either amputation or his life. And he is still not out of the woods.

In Livingston, Texas, rescuers searched today for 11 people still missing after fierce weekend storms. On Lake Livingston, north of Houston, high winds swamped dozens of boats. Two bodies were found, and 11 were unaccounted for.

LEHRER: Mario Cuomo today threw his hat in one ring and reserved a tentative place for it in a second one. The Democratic governor of New York announced he will run for re-election this year. He told reporters in Albany he had no plans to run for the presidency in 1988. But he said, "I'm not God," when asked if he would rule it out.

MacNEIL: In business news, heavy demand for gasoline drove crude oil futures higher today in New York.Trading prices -- pushed prices over $17 a barrel -- more than $3 higher than three weeks ago. Gannett, the country's largest newspaper chain, paid more than $300 million to buy Louisville, Kentucky's Courier Journal and Louisville Times. TransWorld Airline flight attendants called off their ten-week-old strike and will vote tomorrow on a new contract proposal from the airline.

LEHRER: Finally today, the commander of the space shuttle Challenger, Francis "Dick" Scobie, was buried in Washington's Arlington National Cemetery. Scobie was the last of the astronauts on the January 28 shuttle mission to be buried. After a private ceremony, there were full military honors at graveside. His wife June laid a red rose alongside yellow flowers given by NASA's astronaut corps.

That's it for the news summary. Now we look at the Supreme Court's affirmative action decision and at South Africa's raid against targets in three other African nations. Affirmative Action Setback?

LEHRER: The Supreme Court took a sock at affirmative action today. The court declared unconstitutional a Jackson, Michigan plan that laid off white teachers with more seniority to preserve the jobs of black teachers. We're going to look at the legalities and the implications of the decision in a moment, after this reminder that real people are involved. The reminder is an excerpt from a report correspondent Tom Bearden did last fall in Jackson.

SUSAN LAMM, teacher: Second on the list is reputation.

TOM BEARDEN [voice-over]: Susan Lamm is one of the plaintiffs. She's been a teacher here for 12 years. The year before she was hired, the school board and the union agreed that the percentage of minority teachers would not be reduced when it became necessary to lay off staff. In practice, that has meant Lamm and 30 to 40 other white teachers have lost their jobs while less senior minority teachers have kept their positions.

Ms. LAMM: I'm being discriminated against because of my color. I am continually laid off because I'm white.

BEARDEN [voice-over]: The teachers say they've been laid off at the end of virtually every school year, leaving them to suffer through the summer, wondering if they'll be rehired in the fall.

SUSAN DIEBOLD, teacher: The whole time I was on layoff, every day I was worried. It was awful.

DON REEVES, Jackson Education Association: I honestly believe that these people are racist.

BEARDEN [voice-over]: Don Reeves is a trouble-shooter for the Jackson Education Association -- the teachers' union. Both he and his wife Frances have taught here for 14 years. They say the system voluntarily decided to implement affirmative action, that it's worked to the benefit of both minority teachers and children.

Mr. REEVES: Mr. Reagan is always talking about local control.This is the -- the -- the local control that he's been talking about for -- during his last term, and also in this term. Why not let well enough alone?

BEARDEN [voice-over]: Reeves points out that all of the plaintiffs have been rehired, although some have been without work for up to two years.

FRANCES REEVES, teacher: I think these people that have filed the suit -- the eight people -- that they want to go back. And we're in an age where we're moving ahead.We have no time to go back. We need to go ahead and strive for better things.

Ms. LAMM: We're not doing anything different than a black person would do if they were laid off because of their color. We're standing up for our constitutional rights. And I don't think that that's being racist.

Ms. REEVES [voice-over]: We want job security too.Usually we're the first. We're the last hired and the first fired. I don't think we're out here saying "oh, I need your help" or "I am begging you for a job." If you give us that opportunity, we will prove ourselves. We can do it.

BEARDEN [voice-over]: Reports and the school system have asserted that minority students need teachers of their own race to provide good role models. But the plaintiffs say they shouldn't have to suffer as a result.

Ms. LAMM: I think that a lot of theories look good on paper. But the people that carry them out have to be very, very careful.Because otherwise mistakes are made, like the mistake that has been made here. And people get hurt by that.

MacNEIL: In a moment, we'll have a debate between two lawyers who have opposing views in this case. First, some more background on the specifics of the decision from Lyle Denniston of the Baltimore Sun, who covers the Supreme Court and frequently explains its decisions to us.

Lyle, how was the argument made on behalf of the white teachers in constitutional terms?

LYLE DENNISTON, Baltimore Sun: Well, when they were suggesting very simply that, like blacks, they are protected from discrimination based upon their race -- and that argument did prevail in the court -- the court said, for the first time in a constitutional case involving affirmative action for job situations, that whites as well as blacks are protected from race discrimination by the Constitution.

MacNEIL: Now the fact that this for the first time involved an affirmative action case with jobs -- in the work place -- does that make it more important and of larger reach then some of the others in schools and so on?

Mr. DENNISTON: Well, I -- it certainly makes it the most important constitutional decision, Robin, that we've ever had on job rights -- equality of opportunity in job rights. We have to draw a distinction between constitutional cases and cases under federal law, like the Title VII of the 1964 Civil Rights Act. That did not occur in today's case. That was not an issue. Today was the question of are white people protected from discrimination based upon their race in public employment as a constitutional matter. And the court said they were. But I think it's important, Robin, for us to point out that while this was a setback for the Jackson plan, it's a distinct gain for affirmative action, because five members of the court quite clearly indicated that the court would uphold a properly narrowly tailored affirmative action plan that favored minority workers over white workers, even at the expense of the white workers.

MacNEIL: Well, what is the significance then of the five to four decision today -- uh, casting down the specific Jackson plan.

Mr. DENNISTON: Well, with this court, Robin, which is so often very splintered, one frequently has to look at the difference between result and rationale -- between the result and the reasoning. The result in this case is that the Jackson plan didn't make it, constitutionally. The reasoning, however, is that affirmative action plans that favor minorities in order to deal with past or present racial discrimination may in fact be valid. It's not unlike the case that we had in 1978 involving the white man who wanted to go to the University of California Medical School, Allan Bakke. The court ruled in that case five to four that he'd been discriminated against. But that decision has been cited repeatedly since then as a decision in favor of taking race into account in college admission situations.

MacNEIL: So this is not, or should not be read simply as a defeat for affirmative action.

Mr. DENNISTON: Oh, I think clearly it is not at all. As a matter of fact, there is in one opinion of the court, which I think is going to turn out to be decisive, Robin. That's the opinion written by Justice O'Connor only for herself, but it's the opinion that states a common denominator. There is, in Justice O'Connor's opinion, sufficient suggestion that if Jackson, Michigan looks at this plan and bases it upon a different rationale -- a different objective than they had -- this plan could come back into court and they could have this plan pass constitutional muster. I think that's a clear implication of her opinion. You take her vote, then, and put it together with the four dissenters, and a plan like the one that she articulated -- if a plan is drawn according to O'Connor's blueprint, I think that plan can pass muster in the future.

MacNEIL: Just incidentally, to follow up on some other things we've talked about recently, this would be another instance where Justice O'Connor was not following what might have been the expectations of President Reagan in appointing her.

Mr. DENNISTON: I think, as a matter of fact, she probably would be considered a severe disappointment to the administration tonight, because two aspects of the opinion do go strongly against the Reagan administration. One is that when you're trying to put together a governmental affirmative action plan, the Reagan administration wants you to hold that plan only to people who are themselves identifiable victims of discrimination -- in other words, minorities. The court said no. That doesn't have to be true. At least O'Connor's said that, and she certainly has the support of four dissenters for that view.

MacNEIL: Meaning that it can apply to the whole class of people.

Mr. DENNISTON: That's right. The other point that the administration had made is that if a community, a school board or another governmental entity is going to adopt a plan that favors minorities over others, it must first, up front, say that we are remedying discrimination of our own which we have -- ourselves have committed in the past. The court said that's not necessary. You may have to ultimately justify it, but the -- but O'Connor, in particular, said governments must be encouraged to take affirmative action to protect the civil rights of minorities. And that's, I think, the more important ruling in this decision.

MacNEIL: Now, there are two more affirmative action cases this term to be decided. Could you very briefly describe those?

Mr. DENNISTON: Both of those, Robin, have to do with whether or not you can have affirmative action plans under Title VII where you don't have victims being benefited from it. In other words, plans that benefit, as you put it earlier, the whole class. But that's only a question of what Congress meant in passing Title VII of the 19 Civil Rights -- 1964 Civil Rights Act -- has nothing whatever to do with constitutional issues, which is all the court talked about today.

MacNEIL: Okay, Lyle, thank you. Jim?

LEHRER: There are two sides to the argument and the analysis of this and most other affirmative action cases. They are represented here tonight by Paul Kamenar, executive legal director of the Washington Legal Foundation, and Burt Neuborne of the American Civil Liberties Union. Mr. Kameanar, do you -- does your side see this as a victory?

PAUL KAMENAR, Washington Legal Foundation: I think this is a tremendous victory for those who really support the civil rights for all people, no matter what the color. I might have to disagree here with Mr. Denniston's analysis.I think he's trying to squeeze too much of just Justice O'Connor's opinion and not looking really at the plurality opinion, and that clearly states -- and I'll just read one sentence -- it says in particular, "A public employer must insure that before it embarks on an affirmative action program, it has convincing evidence that remedial action is warranted." In other words, you simply can't come in and say, "Well, because of societal discrimination in the past, we're going to have some affirmative action program." You have to have the evidence there that that particular employer has discriminated against a particular minority group. Secondly, even if you do show that, this -- the opinion says, "Layoffs are not permissible if they discriminate against non-minorities, as in this case." So even if you do come in with the convincing evidence which was not in this case, and not in, I would dare say, half the affirmative action plans in the country, you still can not use the layoff program. Furthermore, you have the Title VII issue, which is -- the case is still to be decided. This was a great decision in terms of the equal protection clause of the Constitution, and I --

LEHRER: Equal protection meaning that it protects -- uh, whites as well as minorities, you mean?

Mr. KAMENAR: Right. And Congress can always give you more rights than what the Constitution provides, so that I would dare say that in Vanguard's case, which is yet to be decided, that that court will rule that even hiring -- uh, preferences will not be constitutional -- I mean, not be statutorily permissible under Title VII, as a remedial measure to be taken. So I see this as a major decision for those who truly support civil rights for everyone.

LEHRER: Mr. Neuborne, how would you rate it on the importance scale?

BURT NEUBORNE, ACLU: Well, it's undoubtedly a very important opinion. It's the first time the court has spoken of the constraints that the equal protection clause imposes in an affirmative action context involving employment. But as is predictable, O read the opinion very differently from Mr. Kamenar. First of all, that plurality opinion that he cites only has three votes. It's Powell, Rehnquist and Burger. They were unable to marshal a majority. The two other votes that came across to give them a five vote majority in this case were Justice O'Connor and Justice White, and both of their opinions provide no support whatever for reading this as a very broad --

LEHRER: No support for what?

Mr. NEUBORNE: No support whatever for reading this as a -- as a serious setback for affirmative action. If anything, Justice O'Connor's opinion is a great charter for affirmative action. It essentially lays out the avenues that should be followed in -- in affirmative action cases.

LEHRER: But Mr. Neuborne, they threw out an affirmative action plan, sir.

Mr. NEUBORNE: That's correct. And -- uh, and -- it -- I would rather have won the case. And obviously, this is an affirmative action plan that went down, and I'm sorry. But in terms of the future, the guidelines and the rationale for future affirmative action plans and for the existing affirmative action plans indicate that the vast, vast bulk of them will be -- will be upheld. The court distinguished between three types of situations. Hiring situations, promotion situations and layoff situations. And they said in the layoff situation, where the impact on the white worker is the strongest -- you've actually lost your job -- under those situations, there must be a showing that there was some past discrimination that the government agency is making up for. But they were very careful to say in hiring, and in promotion as well, that that may not be so. And that, in fact, as I read the opinions, it need not be shown. Even in a layoff situation, if there is a reasonable basis to believe that they've been past discrimination, a majority of the court said that would be valid.

LEHRER: Mr. Kamenar, are you all talking about the same decision?

Mr. KAMENAR: Yes we are. At the risk of getting too legalistic here, I --

LEHRER: You're about to -- both of you are about to do it to me. Go ahead. All three of you, in fact.

Mr. KAMENAR: Justice O'Connor did join in that part of the decision. I read where the court said you have to have the convincing evidence of past discrimination. And if you look at Justice White's concurring in the judgment, in fact, I think that goes further. Because he actually talks about victims of discrimination. I think actually his concurring opinion is further -- goes a lot further than the plurality opinion. But more importantly, this decision has the impact, I think, of striking down about half the affirmative action plans in this country, which really are not based on any past evidence of discrimination.

LEHRER: Like what? Give me an example of the kinds of plans that have been struck down by virtue of this today.

Mr. KAMENAR: Exactly like the ones you have here with Wygant where you have fire stations and other public sector employers who have said, "Well, we're going to -- we have a societal problem with discrimination, so in order to please everybody, we'll start setting up a plan where we'll prefer certain groups or others," where they really have no basis of showing that this particular group discriminated in the past.

LEHRER: If they involve -- particularly if they involve layoffs.Is that right?

Mr. KAMENAR: Particularly if they involve layoffs. I think that you can never do that. But even if you look at the Bakke decision, I think you can revisit that and show here was a school that was a new law school -- or medical school, rather -- and there was no evidence or history of discrimination by that school. So I think Bakke, under today's decision, is -- is very suspect. And I think this is also important as striking -- I think it would strike down the executive order which sets up affirmative action for public contractors on the grounds that there is --

LEHRER: You mean the executive order of the U.S. government.

Mr. KAMENAR: That's right. That's currently outstanding, which is about to be revised on the affirmative action program --

LEHRER: Let me say so our audience can understand, this is the one that the Labor Department and the Justice Department are involved in a big hassle about. They haven't been able to get a decision from the White House as to which way they're going to go. Right?

Mr. KAMENAR: And that deals with hiring goals and quotas, and the fundamental flaw with that process now, based on this decision, is that this whole concept of under-utilization of minorities is just as nebulous as this past societal discrimination, because these companies have not been found to have discriminated against when they are --

LEHRER: Under-utilization of minorities, meaning you don't have a certain number or percentage of minority employees --

Mr. KAMENAR: Based on population, which is again an arbitrary figure. Again, there's no examples of concrete discrimination. I dare say that this decision would render that executive order unconstitutional.

LEHRER: Do you agree, Mr. Neuborne?

Mr. NEUBORNE: No, absolutely not. I would --

LEHRER: I had a hunch you were going to say that.

Mr. NEUBORNE: Yeah, well I guess -- I guess it would have been predictable. Don't forget, this Supreme Court has already upheld the 10% set-aside decision that sets aside 10% of the -- of the business in certain government contracts for minority-owned businesses because of a perception that there has been widespread discrimination in certain industries, and that affirmative action designed to make up for that does not violate the Constitution. In all of the affirmative action cases that I know of, it would be perfectly possible to recast decisions that have been made under one set of rationales easily within the rationale of the Supreme Court today. The Supreme Court today says that what you need is you need a reasonable basis for believing that there has been discrimination against minorities in a particular hiring situation over a -- over the past. That is unfortunately a truism in this country.It's so with firefighters, it's so with police, it's so with teachers. And it's easy to prove, and it's easy to establish. And all the Supreme Court requires today is that the governmental entity involved acknowledge that there is a reasonable basis for fearing that that type of discrimination has taken place in the past.

LEHRER: All right. Do you both -- do you both agree that the decision today said that was not the case in Jackson -- that the government -- that the school board in Jackson did not establish that as a fact.

Mr. NEUBORNE: No. That's -- that is not what the court said today. What the court said today is that Jackson's lawyers tried that case on a theory where they didn't have to establish it. In fact, the Michigan Human Rights Commission made a finding of probable cause of discrimination in that case. The parties didn't think that was terribly relevant, because they tried the case on a different theory. But if that case goes back under the -- under the guidelines that the Supreme Court laid down today, Jackson could validate the plan.

Mr. KAMENAR: I disagree. I think the court, if you read the opinion carefully, says that even if you can show that there was this past discrimination, which the record doesn't show that there was, that you can not still use layoffs. That there are narrowly tailored other remedies that are possibly available, and they did mention hiring quotas, I grant you, but even there the court reserved judgement as to whether that would pass constitutional muster. So the opinion doesn't really allow Wygant a second bite at the apple.

Mr. NEUBORNE: Justice O'Connor was very careful to leave open the layoff possibility.

LEHRER: Let me ask, and bring Lyle back into this. Let me ask all three of you a question. Two of you are lawyers, Lyle, you are also an expert on Supreme Court. Why in the world doesn't the UnitedStates Supreme Court clear this thing up once and for all? Why are -- we have a major decision from the Supreme Court today, and here's all three of you giving essentially three different interpretations of what it means. Why don't they take a case, Lyle, and say this is our opinion on affirmative action, let the whole world know, and get on with it?

Mr. DENNISTON: Well, first of all, Jim, they don't have any control on which case comes to them. The court can't reach out for a case in the country and say, "This is a good, clean test case." They take what they're offered. They were offered the Jackson case. Everybody has been waiting for years for them to take an affirmative action job case.This was the one that the court chose, because it involved the issues. And the problem, Jim, is not whether the case is clean. The problem is whether or not you can get nine people on a very important constitutional question to agree on a common ground. And they couldn't.

LEHRER: But look. Here's what happened. They took this case. They come up with a decision that nobody can agree on what it means, and it's five to four. So what is the significance of it? What are we left with, Mr. Kamenar?

Mr. KAMENAR: I think you look at the plurality opinion, which gives you the roadsigns of how the court will rule in the future on various cases like this. And I think the opinion is a -- speaks for itself. It talks about you need to have convincing evidence that there has been this past discrimination. That is clear.And I think, again, to cite Justice O'Connor's opinion standing by itself is really not going to carry the day. I think the -- however -- it could have been written, obviously, with more clarity, but I think there are some definite guideposts here for striking down, I think, a lot of affirmative action programs.

Mr. NEUBORNE: Well, you know --

LEHRER: Go ahead, Mr. Neuborne.

Mr. NEUBORNE: It's not surprising that the court found it very difficult to reach a decision. This is not an easy question. I mean, the degree to which you ask innocent white employees to assist the nation in eradication a -- the fruits of past racial discrimination is a terribly difficult, both moral and legal, issue. And the fact that the court is fragmented on it is not because they are being willfully obtuse, but because the problem itself is extremely difficult. And what the court did today, I think, is the court gave us a series of signposts in dealing with this in the future that will enable us to construct constitutionally valid affirmative action programs.

LEHRER: But from my dumb perspective, the recent questions I'm asking are based on the point that you say they're signposts. You see a signpost, and you see something entirely different than what Mr. Kamenar sees, and Lyle's sitting here, and he sees something a little different than what either one of you see. So what all -- what's the value of the signpost, because --

Mr. NEUBORNE: Well, the signpost is obviously going to have to be interpreted by future judges in future cases. The signposts are there. Whether we're all reading them exactly accurately, I think, is less significant than the fact that the court itself has now begun to grapple with what is -- with what is one of the serious moral problems of our era. It has opened the discussion. It has not closed it. This is not the last case in which we will decide it, but I think we are in a position now to move toward a resolution of the issue which is both morally correct and legally defensible.

LEHRER: Lyle, are there cases coming that the -- that the court is going -- going to resolve that are going to clear this up, that we can all gather here, the three of us, in a few months or maybe in a year and say, "Okay, finally, friends, we can agree at least on what the court said"?

Mr. DENNISTON: I'm afraid not, Jim.

LEHRER: Oh no.

Mr. DENNISTON: We -- there are no cases this term. The docket cases -- the only decision the court has ever issued on affirmative action in college admissions, the Fullilove case is the only decision the court has ever issued on government set-asides for minority-owned contracting firms. This may be the only case we're going to get for quite a long time. I think one of the things that has to be stressed here is remembering the Bakke case was a decision that was four, one, four. And the one person in the middle was Justice Lewis Powell, and Justice Powell's opinion thereafter became the controlling opinion when people wanted to know about affirmative action in college admissions, they returned to Louis Powell's opinion. I think they're going to return to Sandra O'Connor's opinion in the lower courts. I mean, you see, that's where this battle is going to be fought, Jim. And that's why the Supreme Court does not rule retail; it rules wholesale. It gave us a wholesale ruling today, and you're going to have a lot of little judicial markets around the country where we're going to test to see how it works.

LEHRER: Okay. But in the meantime, we have Mr. Kamenar, who says this was a monumental decision as to what is said against affirmative action; we have Mr. Neuborne saying what it in fact did was affirm affirmative action. And that's where we leave it.

Mr. DENNISTON: Well, now you leave it with district judges in 96 United States federal districts around the country to decide case by case what the Wygant case -- that's the case today -- what that case means.

LEHRER: All right. Thank you all three very much. South Africa Strikes Across the Border

MacNEIL: Today's South African attacks on three neighboring nations is our next focus. The South Africans said they were attacking suspected hideouts of the band African National Congress in Zimbabwe, Zambia and Botswana. We'll be talking with representatives of South Africa and Botswana. But first, we have a documentary report from reporter Steve Talbot of public station KQED, San Francisco. He was in the area recently, and this is an excerpt from his documentary.

STEVE TALBOT [voice-over]: Lusaka, the capital of Zambia, is a quiet, modest African city. An unlikely home for what the South African government considers to be a terrorist group. But in Zambia the ANC is welcome.

KENNETH KAUNDA, President, Zambia: ANC, leading the people's Africa, are fighting for what we consider to be a just cause. And so we support them. In spite of all the houndings, in spite of all the killings, the maimings, imprisonment, the beatings, ANC leadership still remains non-racial. To me that's very important. They're looking at men not in terms of color. They don't say all white people are wrong or bad. No. They stand by their principles.

TALBOT [voice-over]: They function more like a government in exile than a guerrilla movement. They operate this medical clinic for their own members and are building a small hospital next door. In emergencies, ANC doctors and nurses also treat Zambians who live in the neighborhood. Malaria is the number one health problem.

Nearby is the ANC print shop, where a small staff of graphic artists and printers churn out thousands of ANC leaflets, pamphlets, calendars and posters. All of this material has to be smuggled into South Africa.

All the ANC homes and offices are spread out -- dispersed throughout Lusaka and the surrounding countryside -- in order to minimize casualties and property damage in the event of a South African airforce bombing raid. About an hour's drive from the city, the ANC owns and operates a 7,000 acre farm and cattle ranch. The farm was purchased with the help of Sweden and Norway. The Soviet Union and eastern bloc countries provide most of the ANC's weapons, but humanitarian and economic aid comes mainly from the West. The farm provides food for the large ANC exile community in Zambia and Angola. Any surplus is sold on the open market to raise cash. The ANC tries to be as self-sufficient as possible, and it wants to train its members to one day run the big, high-tech farms in South Africa.

Ruth Mompati is a member of the ANC's executive committee, one of the highest ranking women in the movement.

RUTH MOMPATI, ANC executive council: I met a 14-year-old who came from South Africa -- the baby of the batch. And I said to him, you I'm sending to school. You know what he said to me? He said, "Oh no, Mother." Because our children call all older women -- he said, "Oh no, Mother. I'm not going to school. If I wanted to go to school, I would have been in -- in school in Soweto now." He said, "I have come out to be soldier. I'm going back to fight. And there's no way you're going to put me in the school." I said, "No, you're too young." He said, "No, I'm not too young to die." [unintelligible] You know, I cried. This is what they've trained our children to do. They have no childhood. They don't know how to play like children. No, they want to fight.

TALBOT [voice-over]: Ruth Mompati's feelings about the violence in South Africa reflect a deep ambivalence which is shared at least by the leadership of the ANC. They are calling for an escalated guerrilla war against the South African government.Already this year, they have intensified their bombing campaign, including this audacious attack on the police headquarters building in downtown Johannesburg.

OLIVER TAMBO, ANC president: The regime is going to be destroyed. Sooner or later. If sooner, very good. Much will be saved. But if later, a great deal will have been destroyed.

TALBOT [voice-over]: While urging whites to remain in South Africa and join the fight against apartheid, the ANC is also issuing a warning.

Ms. MOMPATI: But we are a country at war. And in the course of our attacks on the government installations -- apartheid installations -- the government army and police, because those we are going to attack, people will die. There will be casualties -- severe casualties. It happens in any war. Our war is not any different from other wars.

TALBOT [voice-over]: As the revolt spreads in South Africa, the government is lashing out against neighboring countries accused of harboring ANC guerrillas. Mozambique and Swaziland, under military pressure from South Africa, have expelled all ANC members. The government of Lesotho fell earlier this year, after South Africa impossed an economic blockade around the tiny, landlocked country. And now Botswana.

If Botswana did not have the misfortune of being neighbors with South Africa, it would be a very peaceful country. It's a democracy. Its government is stable. And, thanks to diamonds and three and a half million head of cattle, it's reasonably well off, by African standards. Botswana is a vast country, but it's mainly desert. Just about a million people live here, most of them in the capital, Gaborone. Unfortunately for Botswana, South Africa is burning. And when the border is just a few miles from your capital, it's hard to avoid being scorched by the flames. Since 1976, thousands of South African refugees have fled across this border seeking sanctuary in Botswana. Tension runs high as South African armored personnel carriers patrol their side of the fence.

Last year, on June 14, the South African army raided ten homes and offices in Gaborone, Botswana, claiming they were striking at ANC bases. They shot and killed 12 people, including a six-year-old child. A South African photographer lived here. He and his family escaped before the commands blew up the house. Some of the people killed in the raid were undoubtedly ANC members, even if they were not guerrilla fighters. But in one case the commandos hit the wrong house, killing two women from Botswana.

[on camera] Now, was this -- do you believe this was an ANC office here, or do you know?

R. K. NYEPI, Botswana police: I know.

TALBOT: You do know. Was it?

Mr. NYEPI: Yes.

TALBOT: It was. It was. So here their intelligence was right.

Mr. NYEPI: Oh, yes. Here their intelligence was quite correct.

TALBOT: I see. I see.

[voice-over] The South African army sealed off this street, threatening to shoot anyone who left his house. Then they blew up the ANC office. The Botswana police deny that this office was ever used to plan or conduct guerrilla war.

[on camera] In this office, no guns --

Police officer: Nothing. Nothing. Absolutely nothing.

GAOSITWE CHIEPE, foreign minister, Botswana: We have a very, very long border with South Africa. We are a nation of just a million people. We would need an army of a million to be able to defend ourselves against South Africa. We hope our morality is our defense, and our truthfulness and forthrightness -- that we have nothing to hide. And we don't see why we should be invaded.

MacNEIL: Now we turn to two countries directly involved in today's raid. We'll get the South African view from its consul-general, Abe Hoppenstein. But first we go to Botswana's ambassador to the United Nations, Legwaila Joseph Legwaila. Mr. Ambassador, South Africa said again today that what it attacked in your country was a transit camp for ANC guerrillas. What is your comment on that?

LEGWAILA JOSEPH LEGWAILA, ambassador, Botswana: Actually, what the South African commandos have attacked today is a housing com -- a housing complex owned by a Botswana who was once the principal of an agricultural college outside the capital of my country. It is -- the place is in a village adjacent to our capital, and it has been shown by our government today, after the attack, that the house was not occupied by refugees, not even by the alleged terrorists for the ANC, quote-unquote. But it was occupied by innocent civilians, one of whom came from my own area, near my village. He had gone to Gaborone, the capital, in response to an advertisement. He was looking for a job.

MacNEIL: So you're saying it had nothing to do with the ANC at all?

Amb. LEGWAILA: Absolutely. And I'm sure the South Africans will be very embarrassed when they discover -- when they discover that they have attacked an innocent civilian housing complex which had nothing to do with refugees, had nothing to do with the ANC; it had nothing to do with South Africa in the first place.

MacNEIL: Mr. Consul-General, is your government embarrassed?

ABE HOPPENSTEIN, consul-general, South Africa: My government is not in the least embarrassed. It acted on very good and firm, firmly based information and identified this particular target as a terrorist transit camp. And that's what it is.And it was attacked for that reason. There was no attempt to go off to civilians and no attempt to injure civilians or innocent persons. But my government is committed to fighting terrorism, whether that terrorisim takes place within our borders or extraterritorially.

MacNEIL: Well there you have just a flat disagreement between the two of you. You say it had nothing whatsoever to do with the ANC, and the consul-general says it was a terrorist transit camp.

Amb. LEGWAILA: Unfortunately, he cannot produce any information, because his government has not been able to produce any evidence as to the alleged terrorist camp which they have attacked. They have attacked a civilian house whose name -- I mean, the owner of the place is well-known in Botswana. He unfortunately -- or fortunately for him, he was away. But unfortunately for his visitors. Two they wounded. One was killed. In that place. And the South Africans themselves haven't said they have either killed an ANC supporter or refugee, or a South African, for that matter. They know they have killed one Botswana civilian. Because we have issued a communique which the South Africans by now have read, and they haven't said to Botswana, "No, that house -- that place was being used by the ANC as a terrorist camp," quote-unquote.

MacNEIL: What is your evidence that it was used as a terrorist camp?

Mr. HOPPENSTEIN: My government went into this very carefully. This was a considered raid in all the places where the raids took place. And here again tonight, I'm forcibly reminded when I looked at the segment that preceded this particular discussion, Mr. MacNeil, one saw a previous raid into Botswana. And at that time there were vehement denials and criticisms of South Africa, because again it was alleged that we had attacked a target that had nothing to do with the ALC, and yet tonight we see a policeman from Botswana who was pointing out the target and says, "Yes, the African National Congress was there."

MacNEIL: Yeah, but you said -- what is your answer to that?

Amb. LEGWAILA: I will -- we have all watched what was said on television there. The policeman said the house was occupied by the ANC officers. And the Botswana government has never hidden the fact that we have had ANC officials who have been civilians working in Botswana. In that house, everybody knew that ANC officials were staying there. We [unintelligible] office, about which the South Africans knew very well that we had the ANC there -- an ANC office in our capital. And the other houses you saw who -- which were destroyed in June last year were houses occupied by refugees.

MacNEIL: And not -- your claim would be these were not terrorists who were planning or about to launch attacks on South Africa.

Amb. LEGWAILA: Yes. Because the South African government knew very well, if you want to ask the foreign minister of South Africa, he will tell you that if there is one country that has been faithful to its policy of not allowing freedom fighters to run around in our country with weapons of war, that is Botswana. Because we have tried people in our court of law publicly. We have tried people we have found with weapons in our courts of law.

MacNEIL: What about Botswana's position -- that it does not harbor guerrillas, freedom fighters, terrorists -- whatever you call them -- of the ANC.

Mr. HOPPENSTEIN: I'm trying to tell you there have been terrorists in Botswana. The Botswanian government has been warned by my government that where would be attacks made on terrorists wherever they were found.

MacNEIL: Does South Africa feel that it has the right to attack targets where there may not be terrorist guerrillas, but may be civilian officials of the ANC?

Mr. HOPPENSTEIN: The ANC is a terrorist organization, Mr. MacNeil. It is avowedly terrorist in its operation and its objectives, and it is committed to violence in South Africa and destabilizing the South African situation. My government is not going to tolerate that. My government wants to preserve peace, security, stability in my country, and it will go after terrorists wherever they are.

MacNEIL: But it will attack targets whether they have specifically ter -- armed men who might be guerrillas or terrorists in them or whether they are simply civilian ANC people -- officials who might be planning or doing some of their exercises.

Mr. HOPPENSTEIN: As long as they are operationally involved in ANC activities --

MacNEIL: Any ANC activities.

Mr. HOPPENSTEIN: Any ANC activities. The government will go after the ANC. You've seen the previous film segments this evening. Even on your own program, the commitment to violence by the ANC. And the ANC even stated they're not concerned, it is quite clear, that civilians may be injured as a result of their activities.

MacNEIL: What does -- what does your government make of what the consul-general has just said? They will go after any ANC targets, because the ANC is an organization planning terrorism, in his words.

Amb. LEGWAILA: You see, we, as a democratic country, a civilized country, a law-abiding country, you see, we are facing a dilemma now to share a border with a country which doesn't share our democratic values. I will tell you that the South African government, throughout the 20 years of our independence, we have always cooperated with them insofar as the security of our common border is concerned. The cousul-general can tell you that on several occasions we have been able to apprehend people carrying weapons in our country. On information from -- on information from them. Because --

Mr. HOPPENSTEIN: I'll concede that.

MacNEIL: Your government agrees that his government is trying to root out and prevent active guerrillas from operating from Botswana.

Mr. HOPPENSTEIN: On occasion it has, yes.

Amb. LEGWAILA: Well, we have always done that, you see. We have always done that. And every time they say, "Well, we know that there are some people preparing to attack, you know, South Africa," we say, "Okay, now can you tell us where they are and who they are so that we can apprehend them?"

MacNEIL: If you believe they know that, then how do you explain their attack on your country today? Why now?

Amb. LEGWAILA: Exactly. I mean, this is what is puzzling to us. And if you read the communication by the office of the president, we are so mad, because we say, "Well, here are people who have even agreed to meet us on Friday this week to discuss security on our border." And then a few days before the meeting is to take place between my foreign minister and the foreign minister ofSouth Africa, they attack. And that's what they did in June last year. They attacked us when we had scheduled a meeting between us and them to talk about the problem of security on our border.

MacNEIL: How do you explain that?

Mr. HOPPENSTEIN: Terrorists don't locate in places at opportune times. My government obviously decided this was the time to go after them. They were in transit, this was a transit camp, and the government intervened and did what it deemed necessary.

MacNEIL: There has also been a lot of speculation today about the timing of these three attacks, considering that there is a delegation of British Commonwealth so-called emminent people in South Africa trying to arrange talks between the African National Congress, which is outlawed in your country, and your own government. And speculation that these raids are an attempt to derail or sabotage those talks.

Mr. HOPPENSTEIN: I would very much doubt that, because my government is very keen to have talks with all the black leaders who are involved in my country. And in actual fact, these talks could take place. There's only one ball, one impediment, Mr. MacNeil, that prevents talks taking place, for instance, between my government and the ANC, and those are the ANC won't renounce violence. For instance, Mr. Nelson Mandela, who is imprisoned in South Africa as a result of a conviction of ter -- on terrorism grounds, he could be released tomorrow if he renounced terrorism and violence. So really he has the key in his pocket, really to his jail door. And by the same token, if the ANC were to renounce violence and terrorism, the path would be clear for meaningful talks. And that is what is needed in South and Southern Africa today.In the region, what is needed is people sitting down and talking to each other and not bombing each other's territories.

MacNEIL: Do you see the South African government as willing to hold reasonable talks?

Amb. LEGWAILA: No, I don't see them willing to hold reasonable talks. And I'm really puzzled by the behavior of the South African government, particularly today. You know, in the presence in that country of the emminent persons, and the emmiment persons -- well, we thought when this group was established, was a great victory for -- for those who want peaceful change in South Africa. Little did we realize that the very conflict which has caused so much bloodshed in Soutern Africa, the country which accused their neighboring countries of supporting terrorism, which is the very same country that encourages terrorism in Southern Africa, Is now boming the neighboring countries -- three members of the commonwealth, in the presence of the emminent persons in South Africa. In mean, can you tell me that the government in South Africa is interested in any peaceful change?

Mr. HOPPENSTEIN: The government is categorically committed to peaceful change -- evolutionary change. And the African National Congress has sought to stultify this change by engendering unrest in the townships, by trying to make the townships ungovernable. My government stands ready to talk, my government stands ready to fulfill its promises as far as change is concerned. Only recently you have the evidence of the suspension of the of the pass laws, and that is a meaningful step in the correct direction, and the government is going on with reform. But the government is going to control and have peace and stability in my country, and it's going to ensure that that happens and is not fermented from across our borders.

MacNEIL: There's another -- there's also speculation today coming out of your country that there's another dynamic at work -- that right wing groups, conservative groups in your country, angered and anxious about the degree to which your government is progressing toward some accomodation, however slowly it appears from other countries' point of view, that they needed some gesture of -- by the government.

Mr. HOPPENSTEIN: We do have right wing groups in my gov -- in my country.

MacNEIL: Is this a gesture to placate the right wing.

Mr. HOPPENSTEIN: I very much doubt that this is a gesture to placate the right wing. I believe that this is a gesture taken in the national interest.

MacNEIL: I see. What can your country do about the South African attack?

Amb. LEGWAILA: You know, as my minister said on television a while ago, you see, we are a very small country -- a little more than one million people -- a peace-loving people. We have always lived in that part of the world and outside the South African government. And to tell you the truth, if there is any country that the South Africans know is genuine, very honest, as my minister said --

MacNEIL: But they don't believe your moral position, evidently. What can you do about it?

Amb. LEGWAILA: Well, there is nothing we can do about it other than to appeal to the international community to restrain this bully. That please don't go around lashing at distant countries. The problem is not with Botswana or the other neighboring countries. The problem in Southern Africa is the policy of apartheid, which is the cause of the violence in South Africa.

MacNEIL: Ambassador Legwaila, we have to leave it there, and Consul-General Hoppenstein, thank you.

Mr. HOPPENSTEIN: Thank you.

LEHRER: The Lurie cartoon tonight is about a war that has yet to happen. [Lurie cartoon]

MacNEIL: Once again, the main stories of the day. The Supreme Court struck down an affirmative action plan for black teachers. South African military forces raided three neighboring nations. The White House called on Syria to stop harboring top terrorists. Goodnight, Jim.

LEHRER: Goodnight, Robin. We'll see you tomorrow night. I'm Jim Lehrer. Thank you and goodnight.