The MacNeil/Lehrer Report; The Bakke Decision

ROBERT MacNEIL: In the U.S. Supreme Court today, a split decision in the Bakke case: he wins, but does affirmative action lose?

Good evening. The Supreme Court today delivered its opinion in the Bakke case, the most publicized, most anxiously awaited, and most significant civil rights ruling in a quarter of a century. The court was split. Six of the nine justices wrote separate opinions. But they formed majorities of five on two main points: Allan Bakke, a white man, had because of race been unconstitutionally denied admission to the medical school which admitted minority students with poorer grades. But race could legitimately be considered in other affirmative action programs under certain conditions. It was, in the simplest sense, a victory for Bakke, a thirty-eight-year-old former Marine; and a defeat for the special admissions program of the University of California Medical School at Davis, which must now give him a place.

Four justices -- Chief Justice Burger, plus Rehnquist, Stevens and Stewart -- decided for Bakke and were joined by Justice Powell. But Powell also joined four other justices -- Brennan, White, Marshall and Blackmun -- in asserting that race could be considered in programs designed to overcome past racial discrimination. In effect, Justice Powell cast a pivotal vote on both issues. But beyond those bare bones, in some 200 pages of legal argument, lie many subtleties. Tonight, the meaning of the most important civil rights decision since the school desegregation ruling of 1954. Jim Lehrer is off; Charlayne Hunter-Gault is in Washington. Charlayne?

CHARLAYNE HUNTER-GAULT: Robin, predictably this historic and controversial decision has brought both praise and condemnation, and also confusion, even among parties on the same side. Many qualified their remarks until they had had a chance to study the complex decision. Bakke himself was brief and low-keyed. "We are pleased with this decision," he said, adding, "I`m not going to make any further comment." Beyond that, when asked if he was going to medical school in the fall, he said yes. A lawyer representing another white student in the same situation found the decision self-contradictory in ruling out quota systems but in allowing race to be used as a criterion for admissions. The dean of the Davis Medical School said simply, "We will obey the law." But the president of the university said the decision will make it more difficult for minorities but not much more. The American Jewish Congress, which supported Bakke, was gratified over the decision. The civil rights community, like the court itself, was split in its reactions. Shortly after the decision carne down, Congressman Parren Mitchell, chairman of the Congressional Black Caucus, held a news conference.

PARREN MITCHELL, Chairman, Congressional Black Caucus: I have just concluded a telephone conference call with a number of the leaders in the civil rights movement -- Vernon Jordan, Coretta King, Ben Hooks, Jesse Jackson, Carl Holman and many others were in on that telephone conference call. There was consensus on the basis of that conference call that there should not be an interpretation that today`s decision means the death knell for all affirmative action programs. Quite to the contrary, it does not. The court, although it admitted Bakke, the court has reaffirmed the constitutionality of affirmative action programs. I think that we would b e remiss as members of this caucus to push the panic button, to give a false interpretation of this court decision; I think it would be totally wrong for us to do that. In short, what I`m saying is if the President comes forth immediately with his very positive statement, then the various civil rights organizations, the members of the caucus, will be getting together to develop specific strategies as to how to combat the anti, negatives who would want to see this decision misinterpreted for their own very selfish and ugly reasons.

HUNTER-GAULT: A few hours later Attorney General Griffin Bell said the Justice Department was still studying the decision, but indicated that he too was inclined to interpret it positively. He said he told the President he should be pleased with the court`s action because it upheld the legality of the government`s affirmative action programs.

GRIFFIN BELL, U.S. Attorney General: I`ve just discussed it with the President. I gave him a copy of the opinions for his night reading. I briefed him, told him generally what I said in the opening statement -- what the court held --and he was pleased that the affirmative action position that we took was upheld. That was his main interest in the case. We had very little interest at any time in Mr. Bakke as an individual because we filed an amicus brief. The case came out a little different from our position on Mr. Bakke, but we wish him well. The main thing we`re looking at is what was going to happen to all our affirmative action programs.

HUNTER-GAULT: There was still strong reaction against the decision, as voiced by the Reverend Jesse Jackson. He called the ruling "a devastating blow" thatwill have negative effects on all affirmative action, and urged sit-ins and demonstrations, one of which later materialized in front of the federal building in San Francisco.

MacNEIL: One professor of constitutional law who`s been keeping close tabs on the Bakke case with us on this program is Dick Howard of the University of Virginia Law School. Professor Howard, first of all, people might wonder if this is a so-called landmark decision. Is its effect weakened by the fact that the court was so split?

A.E. DICK HOWARD: Robin, I find that reading the Bakke opinion is a little bit like peeling an onion; there`s layer after layer. You`re first struck by the Powell opinion, because that`s the first one you come to, and then as you pointed out a moment ago, you find that Powell had to join with four justices on one side to reach one issue and four justices on the other side to reach another; and the more you read the more confused one is likely to become. For example, the justices look first at the Civil Rights Act of 1964, Title VI of that statute, which deals with discrimination by recipients of federal funds, and you find that four of the justices say that those recipients may not discriminate on the basis of race; five other justices go on to say that Title VI of the Civil Rights Act does no more than the Fourteenth Amendment does, but then those five justices split in turn over exactly what the Fourteenth Amendment requires. And the more you go the more you find yourself with a pencil and paper trying to jot the justices down in columns to see exactly what`s happened.

MacNEIL: Has this long-awaited decision -- anxiously awaited decision -- clarified the issue or confused it?

HOWARD: It has clarified it, assuming the court stays where it now is; with the four-one-four split on these major questions in the court, it`s conceivable that the resignation or retirement of one justice and his replacement by a new justice could in a future case alter where the court now stands. But I think, viewing the whole thing predictively, the universities around the country, medical and law schools in particular, now have sufficient guidance as to what the court will permit. If you add up what Powell is willing to permit with the four justices who are on the Brennan opinion who go even further than Powell in what they will permit, it`s clear that universities may not do exactly what Davis did -- that is, a rigid quota system won`t work -- but that there is a majority on the court to permit race as one factor among other factors in the admissions process, as long as individuals are treated as individuals in the admissions process itself.

MacNEIL: Well, what precisely has it told us, apart from saying you can`t use a rigid quota, about what is acceptable in using race?

How can a university decide, if it wants to, to admit minority students and give them some advantage, from now on?

HOWARD: Justice Powell has given universities some advice along that line. In his rather long opinion he quotes extensively from Harvard College`s affirmative action program. It`s almost as if it`s an advisory opinion. And that Harvard program, which is fairly typical of a great many affirmative action programs around the country, permits race to be factored into the admissions office decision. And it seems to me that, reading these opinions that came down this morning, if a college admissions office looks at a range of factors -- not only grade point average and College Board scores and scores of that kind but also at the more subjective kind of factors such as geography, where a student comes from; it looks at such things as the disadvantage of family background, and other sorts of factors like that -- if race then is factored in along with those things, I think the colleges will be on sound legal ground.

MacNEIL: Have the justices left many questions unanswered? In other words, is this going to encourage a whole spate of other affirmative action challenges, or reverse discrimination challenges, which as we know are on their way through the courts now?

HOWARD: I see the next round of affirmative action cases as dealing with contexts other than higher education. It seems to me that the colleges and universities, in particular professional schools, now know in what direction they ought to be going, but the court has fairly carefully not taken up in this case, the Bakke case, questions such as affirmative action in employment or other areas of the economy. Powell, for example, seems to carefully distinguish all those cases in which Congress or a state legislature or a court or some other properly ordained body has made findings about prior discrimination by the particular per son or institution being dealt with in the case at bar. And those cases will be different cases and I think are not governed by the Bakke case.

MacNEIL: Well, thank you. Charlayne?

HUNTER-GAULT: Among the groups most immediately affected by the decision are hundreds of educators whose admission policies must now be made to conform with the ruling. Robert O`Neil serves on the Bakke Committee of the American Council on Education, an association of American law schools. He has worked as a professor of law and as an administrator at universities in Ohio, California and New York State. He is currently the vice president of the University of Indiana at Bloomington. Mr. O`Neil, do you agree with Mr. Howard that Justice Powell has sufficiently advised you on where to go from here?

ROBERT O`NEIL: He certainly has indicated the kinds of programs that would now survive this decision, and has, I think, offered some very helpful advice by describing one particular program, and beyond that, by indicating some of the factors which the court or at least which he found improper in the Davis program and suggesting by contrast some factors that would play a role in a constitutionally valid program.

HUNTER-GAULT: Was this the desirable way to go, in your estimation?

O`NEIL: As an individual, I might have been happier if the judgment had come out the other way, but I share with what I suspect...

HUNTER-GAULT: You mean...?

O`NEIL: On the particular issue of Bakke himself.

HUNTER-GAULT: In support of the university as opposed to Bakke.

O`NEIL: Yes. But the far more important issue is the one to which attention has been drawn here: the validation of a whole range of other programs -- in fact, the vast majority of race-conscious admissions, financial aid, recruitment and other kinds of educational programs -which have, at least, by strong implication, been left untouched by this decision.

HUNTER-GAULT: What about the concern that I mentioned earlier, that this decision is self-contradictory in that it rules against quota systems but allows race to be used as a criterion for admission? Is that a dilemma in any way for you?

O`NEIL: I don`t think so. What it does is to rule against one particular form of admissions restriction, a policy which was unusually rigid, perhaps unique among graduate and professional school admission policies, and then by implication in the positive part of the decision encourages the continued use of race in more flexible kinds of programs elsewhere.

HUNTER-GAULT: That Davis program was unique -- or maybe I should ask you how typical was it of college admissions affirmative action programs?

O`NEIL: Very unusual in several respects: one, that it set up a completely separate process, a separate track, as Justice Powell said, for the consideration of minority applicants; it was unusual in that a -specified number of slots were set aside for that minority applicant pool; it was unusual in that no single committee in the end of the process ever considered minority applicants as against other applicants and made some final judgment in terms of individual cases. Most programs, I think, would be different from the Davis program in one or even all of those respects.

HUNTER-GAULT: Prior to the decision and the discussion on this whole matter, you wrote that race and ethnicity will continue to play a substantial role in admissions decisions at selective institutions. How?

O`NEIL: That was at the time written more a hope than a prediction. I think in light of today`s decision it now becomes a reasonably accurate statement of fact. What I would anticipate is that most institutions would briefly reexamine their admissions policies in light of the decision and would find them substantially unaffected; hopefully would continue as they have done in the past to take a flexible view of race and ethnicity in the admissions process.

HUNTER-GAULT: All right; we`ll come back. The high court`s only black justice, Thurgood Marshall, commented today that he could not even guess the number of states and local governments whose affirmative action programs might be affected by today`s decision. The federal official putting an end to discrimination in employment around the country is Eleanor Holmes Norton, head of the Equal Employment Opportunity Commission. Commissioner Norton, civil rights leaders and others have been split today over the reaction to this decision; Benjamin Hooks of the NAACP has called it a victory and a defeat; and as I said, Jesse Jackson called it a devastating blow. What is your view?

ELEANOR HOLMES NORTON: Well, I have to speak from the perspective of someone who has to enforce the law every day. For a year now employers have been looking for weakness at the EEOC; indeed, looking to see whether or not we expected a defeat. My technical reading of the decisions up until this time -- and this is not the first time that the Supreme Court has spoken to the issue of the use of race -- was that the EEOC ought all this year be warning employers that they ought not expect Bakke to let them off the hook. And I think I can report tonight that Bakke has not let them off the hook; on the contrary, the Bakke case has clarified one very important issue, and in my view the issue that made for the controversy. The Supreme Court of California, in an extreme decision, had said that race could not be taken into account.

Five justices clearly say that race-conscious remedies may be used. That decision lays to rest, in my view, the controversy that would have dismantled, the controversy which if we had lost that issue, would have dismantled affirmative action. As it is, I can say to employers that they ought be doing tomorrow what they were doing yesterday and not see the Bakke decision as having undermined their obligation under Title VII of the 1964 Civil Rights Act.

HUNTER-GAULT: In other words, you don`t agree with Mr. Jackson that this is a devastating blow.

NORTON: From a point of view of a civil rights leader -- and indeed, from my own point of view -- the minority view was much preferable, because if the minority view had prevailed, in one blow it would have clarified the issue for all time. As it is, we are left still with many unanswered questions. But I would not believe that Reverend Jackson or anyone else would believe that today`s decision dismantles affirmative action in any way; and by devastating blow I believe he meant, and the context of his statement meant, that it contributed to the climate we all see around us that appears to be unprogressive, appears to be hostile to race on a number of different levels. I don`t think he meant in the technical sense of affirmative action.

HUNTER-GAULT: What about the whole controversy over quotas and goals? Does this clarify that in any way?

NORTON: Somewhat, although I think it important, I think many people reading the decision fast will believe that this case outlaws quotas and you can still have goals. It`s clear that Justice Powell might well up hold quotas under certain circumstances, because he said in the decision that given a finding of discrimination, the court or courts have upheld remedies which have an effect upon so-called innocent victims. Now, there wasn`t a finding of discrimination here, so he wasn`t willing to uphold a remedy which he regarded as rigid. But if there had been a finding, even Justice Powell might have upheld this remedy here; and so I would not jump either to the conclusion that quotas are ruled out -- in fact, courts of appeals have upheld quotas on numerous occasions -- and in the proper circumstances they would be upheld, in my opinion, by this court.

HUNTER-GAULT: Is there a two-second way you can define the difference between quotas and goals?

NORTON: Well, if a target is flexible and requires a good-faith effort, then it`s clear the majority of the court would uphold it. Justice Powell believed that the remedy in Bakke was inflexible and would have excluded any whites from competing, and therefore he voted against the remedy there.

HUNTER-GAULT: And that`s a quota.

NORTON: And that`s what he, I think, would call a quota in that circumstance.

HUNTER-GAULT: Thank you. Robin?

MacNEIL: Yes: thank you, Charlayne. Let`s pursue a couple of these points that Ms. Norton has just raised. Professor Howard, do you agree that the court has not ruled out quotas? I know she`s talking more in the employment sense. First of all, in the education admissions sense, has the court definitively ruled out quotas, do you believe?

HOWARD: Well, Justice Powell refused to enter into what he called the semantic debate over whether there are two different things, goals and quotas. He said that call them what you like, the Davis program excluded people on the grounds of race and race alone, and that was reason enough to strike the particular plan down. But I think that going on from there, whether he would then accept other universities` programs that looked like what some people might call quotas would turn in Powell`s mind on whether there had been findings of an appropriate kind of pre-existing discrimination at that institution. You must remember that on the facts and record of this particular case, the Bakke case, that there was no history of racial discrimination at any point in the history of the University of California at Davis; it`s quite a new university. Indeed, they undertook affirmative action within a year or two of opening the doors of the medical school in 1968. Now, if it`s a university in some other part of the country where that particular state -- let`s say a Southern state -- has a history of state-imposed segregation, you could well imagine a different kind of record in which a court -- a federal district court or a state court -- arguably might be willing to accept a quota as a way of finally once and for all dismantling that historic legacy of segregation. But what Powell was not willing to do was to go along with the Brennan and Marshall thesis on the court, namely that because blacks have historically been discriminated against in America, a societal kind of discrimination, that that in itself would be enough to support the kind of program that the University of California at Davis had.

MacNEIL: Professor O`Neil, do you see it that way? Are quotas ruled out forever, or are there some loopholes, as it seems to me Professor Howard`s suggesting?

O`NEIL: Yes, I agree very much with what he has said. I think there are circumstances in which either a past history of discrimination or a finding, for example by a state legislature or possibly even by a constitutional body such as the Regents of the University of California - which in this case of course made no such finding -- a finding on either part that a history of discrimination had existed and could be overcome or remedied only by a measure as drastic as a quota, such a finding might in the future -- at least, in Justice Powell`s view - uphold the program. I suspect an institutional body would be unlikely to make such a finding, particularly since the majority of the court has now given them a less drastic way in which to approach the current condition of under representation of minorities.

MacNEIL: Let me just pursue the educational point a moment and then come back to Ms. Norton`s other point on employment. Do I understand you two gentlemen -- and I wonder if Ms. Norton would agree - to be in agreement that this has made it easier for universities to apply affirmative action programs for admission of minorities and has no chilling effect because it makes it more difficult? Professor Howard?

HOWARD: I think it has no chilling effect, at least in terms of reading the opinion itself.If someone is of faint heart and wants to backpedal on affirmative action, I`m sure you can find language some where in these opinions that would permit it. Any good lawyer and, I suspect, any educator can do that much. But taking these opinions for what they are, I think that only those universities -- and there may be none -- who have plans that are like the Davis plan have to worry. I would have thought that most universities will find themselves operating under some more general program, not a separate-track system, but a program in which race is simply factored in and weighted along with other factors --I think those universities can go on as they`re now operating and really don`t have anything to worry about as a result of the Bakke decision.

MacNEIL: Do you agree with that, Mr. O`Neil? No chilling effect?

O`NEIL: Yes, I do. Any institution that has been and remains committed to such objectives ought now to find in the decision reinforcement for those objectives and should accordingly continue, or even enhance, its commitments.

MacNEIL: Ms. Norton, no chilling effect?

NORTON: Oh, I see a chilling effect. Not because of the legal ramifications of the decisions, I agree; I agree with my two friends here. But ever since the DeFunis case you have seen universities, per haps fearing lawsuits, fearing what you have to go through to defend them, being a great deal less willing than they were in the late `60s to undertake the very extensive affirmative action programs they were willing to do right after the death of Martin Luther King, for example. So that I think there will be some tendency to want to be more careful, and I think this coincides with some of the economic circumstances of the universities anyway. And I regret this decision largely because I think its effect will be not so much legal and technical as it will be chilling to the enthusiasm for these programs.

MacNEIL: Let`s look at the other effect that you brought up a moment ago and ask the two gentlemen: the justices, as I gather, avoided getting into the employment area, and there are other cases coming up in which they may be required to give an opinion. Do you see, as Ms. Norton does, a signal going out, however, from this decision which will reaffirm affirmative action in employment? Mr. Howard?

HOWARD: Yes. I see that kind of signal implicit in the Bakke decision. The court carefully doesn`t take up the employment question here, they deal only with higher education; and it seems to me in talking about that that they don`t get into what they would say if they had an employment case in front of them. That`s simply not the problem the court deals with here. And the signal that I see being sent out on the employment front is, for example, in Justice Powell`s opinion, where he says that if there are findings of discrimination, either made by a court, by an administrative body or by a legislative body, then those findings can be the predicate for affirmative action. And as I understand the employment discrimination field and the affirmative action programs there, whether it`s an agency or a court proceeding you will have some kind of findings dealing with that particular employer, and not just; sort of a carte blanche kind of approach applying to society generally.

MacNEIL: Ms. Norton, I`d like to end with a question to you. Rutgers University filed one of the many briefs in this case, and it said this would be a watershed, the place at which the court must decide whether the journey towards a truly race-neutral society will be continued or abandoned." What kind of signal have they given in that sense?

NORTON: The court has decided to approach this question as one step along that path rather than do what the dissenters would have done, Marshall and Brennan and the other, and simply clear up the matter and make this a watershed decision. Coming up to the court are several Title VII decisions, job discrimination decisions...

MacNEIL: We just have a couple of seconds, Ms. Norton. I just didn`t want you to launch into a long thing there. It is a step towards a race-neutral society but not a watershed, is that what you mean?

NORTON: Oh, it`s by no means a watershed; the court specifically refrained from making it a watershed.

MacNEIL: Well, thank you, all three of you, very much indeed. That`s all; and good night, Charlayne.

HUNTER-GAULT: Good night, Robin.

MacNEIL: That`s all for tonight. We`ll be back tomorrow night. I`m Robert MacNeil. Good night.