The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I`m Jim Lehrer.

On the NewsHour tonight: the news of this Monday; then, two views on Iraq policy at the beginning of an important week, the Iraq Study Group report and hearings for a new secretary of defense; plus, two takes on race and school assignments, a NewsHour report about the Seattle school system; and today`s arguments at the U.S. Supreme Court, as seen by Marcia Coyle of the National Law Journal.

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JIM LEHRER: The number of U.S. troops killed in Iraq passed 2,900 today. The toll rose with the deaths of 13 more Americans over the weekend. Four of those were U.S. Marines, who died when their helicopter crashed into a lake in western Iraq.

The news came on the same day President Bush mulled options for a new approach to Iraq policy. At the White House, he talked about efforts to stop the violence with a top Shiite leader, Abdul Aziz al-Hakim.

GEORGE W. BUSH, President of the United States: I told him that we`re not satisfied with the pace of progress in Iraq and that we want to continue to work with the sovereign government of Iraq to accomplish our mutual objectives, which is a free country that can govern itself, sustain itself, and defend itself.

JIM LEHRER: Al-Hakim told the president he opposes any regional or international effort to solve Iraq`s problems.

There was also word outgoing Defense Secretary Rumsfeld recommended a tactical shift in Iraq before he resigned in early November. The New York Times first reported the leaked memo yesterday. Rumsfeld wrote to the president, "In my view, it is time for a major adjustment."

In the latest violence across Iraq, shootings and bombings killed at least seven Iraqis today. On Saturday, 68 Iraqis died in a triple car bombing at a Baghdad market.

Outgoing U.N. Secretary-General Kofi Annan told the BBC the violence in Iraq was worse than other recent civil wars.

KOFI ANNAN, U.N. Secretary-General: Given the level of the violence, the level of killing and bitterness, and the way the forces are arranged against each other, look at a few years ago when we had the strife in Lebanon and other places. We call that a civil war; this is much worse.

JIM LEHRER: We`ll have more on Iraq right after this news summary.

The American-trained police force in Afghanistan is underperforming and inadequate; that`s according to a joint report from the inspector generals at the Pentagon and the State Department. It was made public today.

The report concluded many recruits are illiterate and cannot carry out basic law enforcement duties. And it found no effective field training program had yet been established. The United States has spent $1.1 billion on the training program so far.

President Bush accepted the resignation of U.N. Ambassador John Bolton today. He will step down when his temporary appointment expires, no later than early January.

Bolton`s confirmation languished in the Senate after Democrats and some Republicans blocked a vote. President Bush gave him the job as a recess appointment in August 2005.

President Hugo Chavez of Venezuela won easy re-election last night. He celebrated with his supporters in Caracas. He pledged to press forward with his socialist-inspired policies in Venezuela and overseas. Chavez first took office in 1998; his new term is for six years.

The U.S. Supreme Court heard two cases today on racial integration in public schools. The justices considered whether students can be assigned to schools based on race to ensure diversity.

Parents in Seattle, Washington, and Louisville, Kentucky, challenged such school assignment plans. Supporters argued it ensures racial diversity and prevents segregation. We`ll have more on the story later in the program tonight.

Death toll estimates from a typhoon in the Philippines passed 1,000 today. The storm hit five days ago and triggered massive landslides and flooding. Red Cross officials said many of those killed might never be found. The typhoon weakened significantly today as it approached Vietnam.

In this country today, nearly 300,000 customers waited for electricity to return in Illinois and Missouri. It was knocked out in a severe ice and snow storm that swept through the Midwest last Thursday night. The storm killed 19 people. Temperatures today were still in the teens and 20s, which made it harder for utility crews to restore power.

On Wall Street today, the Dow Jones Industrial Average gained more than 89 points to close above 12,283. The Nasdaq rose 35 points to close at 2,448.

And that`s it for the news summary tonight. Now: the Gates hearing and other Iraq policy developments; and using race to make schools.

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JIM LEHRER: Washington`s big week on Iraq. There`s the coming of the Baker-Hamilton study group report on Wednesday, and tomorrow`s confirmation hearing for defense secretary-nominee Robert Gates, accompanied by the ripples from a memo written by the man he would succeed, Donald Rumsfeld, and the ongoing violence and casualty reports from Iraq itself.

We begin with a look at Robert Gates, who`s been here before. NewsHour congressional correspondent Kwame Holman reports.

GEORGE W. BUSH, President of the United States: He has my confidence and my trust. And he will be an outstanding secretary of defense.

KWAME HOLMAN: When President Bush nominated Robert Gates to replace Donald Rumsfeld, he touted Gates in much the same way his father did in 1991, when Gates was his choice to run the CIA.

GEORGE H.W. BUSH, Former President of the United States: ... that this man has my full trust. He`s honest. He`s a man of total integrity.

KWAME HOLMAN: Robert Gates went on to direct central intelligence for the next two years, but not before and during a bruising confirmation fight in the Senate Intelligence Committee, where his trust and integrity both were questioned.

ROBERT GATES, Secretary of Defense-Designate: I don`t think it is unreasonable that somebody is not going to remember the details of a conversation that took place five or six years ago or even five or six weeks ago.

SEN. EDWARD KENNEDY (D), Massachusetts: ... this is enormously important.

KWAME HOLMAN: As Gates prepares to return to the glare of the confirmation hearing spotlight tomorrow, two former committee members who vetted Gates 15 years ago recalled the hearing that left him looking like a competent but often abrasive manager.

FORMER SEN. WARREN RUDMAN (R), New Hampshire: They were some of the nastiest hearings that I participated in.

FORMER SEN. DENNIS DECONCINI (D), Arizona: It was a bad scene, and Gates was caught right in the middle.

KWAME HOLMAN: In the fall of 1991, Republican Warren Rudman of New Hampshire and Democrat Dennis DeConcini of Arizona watched as Gates defended himself against two major charges: that he had lied to Congress in 1987 about his role in the Iran-Contra affair; and that he politicized intelligence to suit the policy agenda of the Reagan administration.

ROBERT GATES: I`ve watched, and listened, and read with some dismay, as well as some pain and anger, during recent days the discussion here of slanting intelligence.

KWAME HOLMAN: As the number-two man at the CIA in the mid-1980s Gates and his boss, Director William Casey, were among many senior Reagan administration officials caught up in the firestorm surrounding the Iran- Contra scandal.

While many were indicted and some even served jail time, Gates never was charged. He claimed to have no knowledge that funds from missile sales to Iran were being funneled secretly to the Nicaraguan Contras.

ROBERT GATES: I didn`t know large elements of this.

KWAME HOLMAN: But Gates` recollections were tested on several occasions at the `91 hearings. Thomas Polgar, a highly decorated former CIA official who worked as an investigator for the Senate`s Iran-Contra committee in 1987, insisted Gates covered up what he and his superiors knew.

THOMAS POLGAR, Former CIA Official: He was not only aware of Iran- Contra developments, but, in fact, had involvement with all these over several years, dating back to his duties as deputy director for intelligence.

KWAME HOLMAN: Former Senator DeConcini said Polgar had it right: Gates was not telling the whole truth.

DENNIS DECONCINI: I think he just wasn`t totally transparent and fully disclosing everything that he knew. I`ve been through a lot of hearings, and when you`re a witness and you`re trying to protect something, you`re going to really have a hard time.

KWAME HOLMAN: At the hearing, DeConcini pressed his case to Alan Fiers, the former chief of the CIA`s Central American task force. Fiers previously had told authorities that he and other CIA officials knew about the covert operation to fund Nicaraguan rebels before the White House admitted it.

DENNIS DECONCINI: I`d like to have you refine, if you can, what is a little, from one to 10? Did he know one? Did he know anything?

ALAN FIERS, Former CIA Official: Well, he, clearly...

DENNIS DECONCINI: I gather he knew something in your judgment.

ALAN FIERS: In my judgment and to the best of my recollection, he knew something. He had a baseline of knowledge.

KWAME HOLMAN: But former Senator Rudman, who served as vice chairman of the Iran-Contra committee in 1987, took Gates at his word.

WARREN RUDMAN: I think he was candid, although, to be perfectly honest about it, it is quite conceivable that, like anyone else in this world, that there were things that occurred there that Bob Gates genuinely did not remember. I mean, I would give him that. I don`t think Bob Gates deliberately misrepresented his recollection to that committee.

KWAME HOLMAN: But as the hearings wore on for three weeks, other chapters in Gates` 26-year CIA career were questioned. One was the accusation by former analysts that he rewrote a 1985 memo to fit his own theory that the Soviets were involved in the 1981 assassination attempt against Pope John Paul II, despite evidence to the contrary.

Former Soviet specialist Melvin Goodman worked under Gates.

MELVIN GOODMAN, Former CIA Official: There was pressure throughout to produce an assessment implicating the Soviets, pressure on me to do so, but the evidence wasn`t there. The important thing here is that, when Gates received the assessment, he was not satisfied with it. In fact, the senior Soviet analyst told me that she tried her hardest to give Gates what he wanted, but it still wasn`t enough.

KWAME HOLMAN: That senior analyst was 32-year-old Jennifer Glaudemans. She said she and her colleagues felt their jobs would be in jeopardy if they did not comply with Gates` views.

JENNIFER GLAUDEMANS, Former CIA Official: I take no satisfaction in sharing with you the basis of my conviction that Mr. Gates politicized intelligence analysis and is responsible for an overall degradation of the analytical process.

KWAME HOLMAN: Rudman was outraged by the analysts` attacks on Gates.

WARREN RUDMAN: To inaccurately quote individuals and documents and to cite anonymous hearsay is -- and I choose my words carefully -- McCarthyism, pure and simple.

Some of the younger people at the CIA were really angry at Gates because he tended to reject their analysis. That was the, if you will, if you would, the genesis of the nastiness of those hearings. Bob Gates not only denied it, but gave us chapter and verse where things he was accused of doing, such as rewriting reports, he had not rewritten.

ROBERT GATES: The allegations that I drove this paper to its conclusions and then knowingly misrepresented it to policymakers are false.

KWAME HOLMAN: Gates, of course, ultimately was confirmed by the committee, though four Democrats voted against him, including DeConcini. The possibility that Gates skewed intelligence weighed heavily on the Arizona Democrat. Today, it`s still a concern.

DENNIS DECONCINI: This guy`s a very smart, savvy guy, Bob Gates. I`ve seen him in this town a long time. He makes friends, not enemies. He knows all the players here.

But he`s a company man, and he`s a Bush company man. And will he have the courage -- and I`m sure Carl Levin and some of the members of the Armed Service and Intelligence Committee are going to ask him that question -- will he have the courage to take good information that comes up from the agency, from his Defense Intelligence Agency, and not turn it the way the White House would like it to be?

KWAME HOLMAN: Rudman acknowledged that Gates` major challenge before Armed Services Committee members tomorrow will be to prove he`ll bring an independent perspective to the job of defense secretary. While the issues that roiled Gates in the past mostly are outdated, he said, they still may be on the minds of more veteran lawmakers.

WARREN RUDMAN: They`re not relevant in an absolute sense, but they are relevant in the sense as to the character of the man who will be heading the largest part of our government, the Department of Defense. And if one were to believe, based on that hearing of record, that Bob Gates was not a person of integrity, than that would be a serious issue. I don`t think anybody can fairly reach that conclusion.

KWAME HOLMAN: Gates is not expected to undergo the same kind of grilling tomorrow he did 15 years ago. The committee is scheduled to spend just one day questioning Gates before voting on his confirmation.

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JIM LEHRER: And now, Gates, Baker-Hamilton, Iraq, et al, as seen this Monday night by Dov Zakheim, the Pentagon`s comptroller and chief financial officer during President Bush`s first term. He`s now a vice president at Booz Allen Hamilton.

And Jessica Mathews, a State Department and National Security Council official in the Carter and the Clinton administrations, she`s now president of the Carnegie Endowment for International Peace.

So, Jessica Mathews, how do you see Bob Gates as a replacement for Donald Rumsfeld right now?

JESSICA MATHEWS, Carnegie Endowment for International Peace: Somebody who will be able to command, I think, a lot more of Congress`s trust, notwithstanding the issues that we just heard about, more of a caretaker than a leader, a manager, an executive.

But remember: He`s an intelligence professional, not a defense professional. So he`s coming in, in the middle of six crises, with very little time left. I think the role maximally, really, is more of a caretaker.

JIM LEHRER: Do you agree, a caretaker?

DOV ZAKHEIM, Former Pentagon Official: No, it`s got to be more than a caretaker. First of all, lots and lots of people other than Donald Rumsfeld have come in without being experienced secretaries of defense. What he brings is executive cabinet-level experience. That`s very, very important.

He brings a record of working with other agencies. He brings a record of being able to work with the Congress. He brings a record, evidently, of satisfying a lot of people when he was head of the CIA. He has to do more than just be a caretaker; being a caretaker for Iraq over the next two years just isn`t enough.

JIM LEHRER: What do you think of that? I mean, do you think that it`s possible that Bob Gates could actually influence Iraq policy? You don`t think so, huh?

JESSICA MATHEWS: Oh, I think he will be a player, but I think the key players here are the president and the vice president.

DOV ZAKHEIM: Oh, he`s going to be more than that. But in a sense, isn`t that what we want?

One of the complaints that one heard, whether right or wrong about Donald Rumsfeld, was that he was more than just a player, that he was dominating everything. Now when someone comes in who has a record for cooperating with lots of people, working in what`s called the interagency, shouldn`t complain that he actually does what people were complaining about Mr. Rumsfeld.

JESSICA MATHEWS: I don`t disagree with that; nor am I complaining about it. I was trying to describe what role I think he`ll play.

I think that everything we know about Bob Gates` career suggests a very different kind of personality, who`s more interested in team-playing than in perhaps bringing up inconvenient truths and, you know, upsetting the apple cart in the direction of any particular policy one way or the other.

JIM LEHRER: Speaking of the apple cart, what did you make of Secretary Rumsfeld`s memo that got leaked over the weekend?

DOV ZAKHEIM: Well, I mean, it`s very typical of him. He`s a man who sparkles with ideas. I was on the receiving end of a lot of his snowflakes. In fact, I had a...

JIM LEHRER: Snowflake is what they call his...

DOV ZAKHEIM: A snowflake is these quick memos. I had a little box in my office called "Snowflakes from SecDef," because they used to pile up. He comes up with an idea, and out it goes. And in that respect, he`s quite different from Bob Gates, who`s an analyst, who`s going to think through ideas before he articulates them.

Secretary Rumsfeld articulates the ideas and then says, "OK, now what do we do with these?" And if you look at that memo, it`s got about 20-odd suggestions, interesting that not all of them are mutually exclusive. In fact, he says, "You might want to combine a bunch."

That`s very typical of him, throwing out ideas and recognizing that we just cannot go on the way we`re going. Now it`s Mr. Gates to decide, "OK, to work with others, how do we go?"

JIM LEHRER: What`s your reaction to that memo?

JESSICA MATHEWS: I was amazed that it got as much coverage as it did.

JIM LEHRER: Is that right?

JESSICA MATHEWS: Yes, the one sentence that we, quote, "need a major change" is perhaps...

(CROSSTALK)

JIM LEHRER: That it isn`t working, and we need to change?

JESSICA MATHEWS: What followed it was not a memo in any respect that I`ve ever written one or read one. It was a list of ideas, many of which were contradictory. They were kind of -- they were certainly not a comprehensive list of -- and there was no analysis and no recommendations. So, to me, it was a lot less newsworthy than it`s gotten.

I think one other point to make about Bob Gates, though, at the Pentagon is I think we can expect a much better relationship between him and the uniformed military, which is important at this point, because this passage we`re about to go through is going to be terribly painful.

JIM LEHRER: Why do you think it will improve with Gates?

JESSICA MATHEWS: Well, I think it would improve with almost anybody...

JIM LEHRER: Can`t make it any worse?

JESSICA MATHEWS: ... from where Secretary Rumsfeld is now and his relationship with the military, and so...

JIM LEHRER: Do you agree that, first of all, the relationship is awful, and that it would improve with Bob Gates?

DOV ZAKHEIM: It will certainly improve. Is it awful? I don`t know. I mean, after all, there are a lot of senior people in the military who get on with him.

But I think, by and large, military folks did not understand how to relate to him. His style is just so different from the kind of civilian they`re used to that many of them just didn`t know how, and many of them got demoralized. Rightly or wrongly, that`s the reality: They were demoralized.

And one could tell, as soon as the Gates appointment was announced, just a different behavior. I mean, I spoke to loads and loads of military people, and they all felt like, "Well, here`s a way that we have a chance now to relate." It just was something -- chalk and cheese, if you will, just talking past each other in many cases with Secretary Rumsfeld.

JIM LEHRER: Speaking of talking past, the memo itself -- a snowflake, in the terminology that you outlined -- and, first of all, you agree -- well, you do agree that there was no analysis in it, but that`s a typical - - you say that`s the way Rumsfeld operated.

DOV ZAKHEIM: That`s the way he is; he throws out ideas.

JIM LEHRER: But what about the idea that he was seeing this thing as isn`t working? And he never really said that publicly before. And he said this in a memo two days before he resigned. You didn`t find that peculiar or interesting or...

DOV ZAKHEIM: No, his obligation was to his boss. And before you go public and say something isn`t working, you really ought to tell your boss that you think something isn`t working and wait to see what his reaction is.

JIM LEHRER: What did you think about that? That he finally put -- now, I won`t say finally -- but he put this in writing the way he did. And clearly, the document got out in the public. Do you think he intentionally wanted it out?

JESSICA MATHEWS: I have no idea. But I think if you can`t write to your boss what you think, then why be there? I mean, at some point, for our government to operate, you have to be able to put on paper a serious piece of thinking, and analysis, and recommendation. This wasn`t that, but truly we have to be able to do that.

DOV ZAKHEIM: It also shows, I must say, that, you know, there are a lot of canards about Mr. Rumsfeld right now. A lot of people are kicking him, and this is a pretty good example of the way he worked.

He did think things through. When he was uncomfortable with situations, he was prepared to reverse himself. He wasn`t locked in, and he was prepared to go to the president and say it isn`t working. And that was before the announcement. So I give him credit for that.

JESSICA MATHEWS: Well, I think you have to see an awful lot more evidence to find evidence that he was really prepared to make any kind of fundamental change.

And I must say I also think it puts too much on the recipients of his style to say that the military just got demoralized because they couldn`t cope with them. He also couldn`t cope with the military very well.

And if you remember September 10, 2001, the day before the terror attacks, the big discussion in Washington was, who was going to be the first Bush cabinet member to leave? Because he had managed to totally alienate the military and the Congress. So I would shift, you know, the responsibility there.

But I think the key point of which we would probably agree is that it was this enormously difficult time ahead, that there should be a much closer and more constructive relationship and more open between the civilian side and the military side inside the Pentagon is a big plus.

JIM LEHRER: All right, now fit the coming of Gates, the Rumsfeld memo, and other factors into what`s going to happen on Wednesday, which is the Baker-Hamilton report. How does all this come together for you?

DOV ZAKHEIM: Well, for a start, the report isn`t going to be an executive order, and, you know, there`s so much hope being pinned on something. We were talking -- actually, Jessica and I -- a little earlier. We couldn`t remember a commission reporting in the middle of something about what should be done. Most commissions report after something has happened.

But this is not the president reporting. It`s not even the secretary of state. It`s a former secretary of state and a lot of formers. And as a former, I can tell you: We`re formers. That`s number one.

Number two is, there other inputs. We know that there are studies going on inside the Defense Department.

JIM LEHRER: What have you heard about those, anything?

(CROSSTALK)

DOV ZAKHEIM: Well, again, they`re keeping those very, very much under wraps. But clearly there`s that. Then there`s Mr. Rumsfeld`s set of ideas. There are all sorts of people, all sorts of op-eds, all sorts of inputs.

Again, Bob Gates is going to be part of a team that sorts that out. And they`re the ones that have to implement and execute the policy. And one of the things that people always forget is: It isn`t just formulating or even analyzing; it`s executing. Those are the guys who have to do the execution.

JIM LEHRER: How do you feel about Baker-Hamilton on this Monday night?

JESSICA MATHEWS: I think it`s going to be the start of a broader conversation rather than the word from on high that everybody is hoping to find. There is no good solution that somebody can pull out of a drawer.

And while it`s unfair to judge a group that hasn`t even produced its product yet, on the basis of leaks, since that`s what we have to do at this point, I would say that in the search for consensus what you`ve come out with is a bottom line that represents far less than anybody`s expectations or hopes.

That is that the idea that, well, we should begin a very gradual withdrawal, but it should depend on circumstances on the ground, if the president were to say that, I think most people would scream, "Wait a minute. How is that different, you know, from where we`ve been?"

So I think this was an effort to find bipartisan consensus, which is terribly important, but that what it reflects is that the country is not yet willing to grasp the nettle of the very painful choices we`re about to have to make.

DOV ZAKHEIM: There`s one other thing, too, and that is, from the perspective of the Middle East, withdrawal is a disaster. It would follow on a series of cases that they remember -- and it`s not Vietnam. We keep talking about Vietnam.

The people in the region, it`s Lebanon. It`s not following up in Afghanistan after the Soviets left. It`s Mr. Carter saying he supported the shah, and the shah falls.

They have a series of cases -- it`s not supporting the Shia when they revolted in `91 -- so that they would then interpret a withdrawal or a signal of a withdrawal in such a way that I don`t think we would have influence there again.

JIM LEHRER: And that will be part of the debate post-Wednesday. In a word, will we look back on this week in December 2006 as a week that caused Iraq policy to change in any major way?

JESSICA MATHEWS: No, but I think we`ll see it maybe as the beginning of the end.

JIM LEHRER: Beginning of the end?

DOV ZAKHEIM: I`m inclined to agree that it`ll be some kind of inflection point, if you will. Some slight change of course, but let`s not overstate it.

JIM LEHRER: Thank you both very much.

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JIM LEHRER: Still to come on the NewsHour tonight: how the schools can and should use race. But first, this is Pledge Week on public television, and we`re taking a short break now so your public television station can ask for your support. That support helps keep programs like ours on the air.

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JIM LEHRER: Now, the Supreme Court considers questions of race, admissions and integration in the public schools. Those issues were at the center of a pair of cases brought before the court by parents in two school districts: Louisville, Kentucky, and Seattle, Washington.

NewsHour correspondent Lee Hochberg, of Oregon Public Broadcasting, begins with some background on the Seattle schools.

LEE HOCHBERG, NewsHour Correspondent: Being the center of a Supreme Court case was the last thing Kathleen Brose imagined when she and her husband bought this house with a view of Mount Rainier in a tony Seattle neighborhood.

KATHLEEN BROSE, President, Parents Involved in Community Schools: We moved into this neighborhood believing it would be a great place to raise a family and that our kids would attend the neighborhood schools, just like we did when we grew up.

LEE HOCHBERG: It didn`t work out that way. In 2000, her daughter, Elizabeth, graduated eighth grade and applied to the newly remodeled Ballard High School nearby. But that school was full. Under the Seattle district`s student assignment plan, her assignment was then based on whether it would help desegregate a school.

The district wanted the make-up of each Seattle school to mirror the racial breakdown of the district itself: 40 percent white; 60 percent nonwhite. So, though she had marked two other schools as back-ups, Elizabeth was assigned to Franklin High, a heavily black school with lower test scores eight miles away.

KATHLEEN BROSE: She got discriminated against because she was told she couldn`t go to three different schools because she had the wrong skin color.

LEE HOCHBERG: She`s white.

KATHLEEN BROSE: Yes, she`s white. She was told basically, "You have no value to us, except your skin color. We don`t care if it`s going to be a burden to have you get on that school bus every day."

LEE HOCHBERG: Three hundred of the Seattle district`s 46,000 students were placed according to their race in the 2000-2001 school year. Brose, a former PTA president, led parents in a lawsuit against the school board. They argued the policy violated the Constitution and the Civil Rights Act of 1964.

KATHLEEN BROSE: It`s wrong. It`s illegal. To me, it`s immoral. This is the United States. We do not discriminate.

LEE HOCHBERG: The Seattle School District suspended the policy after the 2001-2002 school year, pending the legal challenge, but it maintains it has a compelling interest to provide diversity at all of its schools. Superintendent Raj Manhas.

RAJ MANHAS, Superintendent, Seattle Public Schools: You know, our role is to educate kids, not only to do really well in school, but to be very effective citizens of the future of our nation and the world. And the world is changing around us.

You know, it`s not all about what kind of grades we got; it`s about, how can we interact with others? How can we work with others? And so that itself is an educational benefit.

TEACHER: OK, how about Malcolm X? How many people see that probably one of the reasons that he was not taught to read well was because of race at the time?

LEE HOCHBERG: The Seattle district proudly shows off the educational and social environment at its Chief Sealth High School, where the racial mix is one quarter white, one quarter African-American, one quarter Asian- American, and a growing percentage of Latinos.

TEACHER: In a moment, you`re going to be writing about that, OK?

LEE HOCHBERG: But the district says, as good as the social mix is at this school, its other schools have been harder to integrate without use of the racial tie-breaker. Manhas says, with the tie-breaker, the district was able to mix 21 percent white students into Franklin High`s nonwhite majority. Without it, the school is now only 10 percent white.

RAJ MANHAS: I believe it will be a real loss if we lost even this small, one, little factor, which we have the ability to use right now, to promote more of this diverse learning environment for all of our students.

LEE HOCHBERG: Last year, the Ninth Circuit Court of Appeals in San Francisco upheld the school district`s policy. Writing for the majority, Judge Raymond Fisher said, "The district has a compelling interest in securing the educational and social benefits of racial and ethnic diversity."

But four dissenting judges argued research studies are mixed on whether diversity benefits students academically.

JIM LEHRER: Now, the arguments today in the Supreme Court. Gwen Ifill is in charge.

GWEN IFILL: Today`s arguments marked the first time the court has taken up the question of whether school districts can, on their own, use race-based approaches to end unintentional segregation in the nation`s public schools. The parents in Seattle were also joined in their complaint by others in Louisville, Kentucky.

Their challenges were at the heart of lively argument today outside the Supreme Court, where protesters gathered before dawn, and inside the court, as well. As always, Marcia Coyle of the National Law Journal was in the courtroom.

They seemed to be very engaged, very lively today, Marcia.

MARCIA COYLE, National Law Journal: It was, as you pointed out, both outside and inside the courtroom. The justices inside the courtroom had a lot of questions for the lawyers. I think there was a question from every justice, except Justice Clarence Thomas, who usually does not ask a question.

GWEN IFILL: Does it make a difference in the arguments as they played out today whether race is a factor in these kinds of decisions or the factor?

MARCIA COYLE: It does make a difference. The Supreme Court has said, in prior decisions involving voting rights and affirmative action, that race cannot be the sole factor.

Three years ago, the court took up the affirmative action cases involving the University of Michigan`s admissions program for the university and its law school. And there the court said that race -- it would accept a limited use of race, if there was a compelling government or state interest, and the person or university here using race had narrowly tailored means to achieve the objective.

The objective in the university cases was that there was a compelling interest in diversity of education, particularly in the higher education context.

GWEN IFILL: Marcia, in these two cases, in Louisville and Seattle, were the programs crafted in a way in that race was the only determining factor about where these kids went to school?

MARCIA COYLE: No, not at all. In Seattle, entering ninth-graders had a choice of 10 high schools, and they were to rank them their first -- top three choices. If they applied to a school that was considered oversubscribed, full, the school district looked at so-called tie-breakers.

First, they looked to see if the student had a sibling at the school of choice. Second, they looked to see where the student actually lived, how close to the school that he or she wanted to be in. And then race became a tie-breaker.

GWEN IFILL: And this was the court`s -- this was something that the cities did on their own. This wasn`t something that was mandated by anybody.

MARCIA COYLE: Yes, it`s very interesting. Seattle, actually back in the `60s and `70s, when many cities and school districts were under court orders to desegregate, voluntarily took on the effort to desegregate its schools. And Louisville, which was under a court order from 1973 -- I believe until 2000 when the order was lifted -- after the order was lifted, Louisville, on its own, voluntarily decided to maintain its integrated schools through this particular admissions program. So it is purely voluntary.

GWEN IFILL: This is one of those rare cases where we get to actually hear the audio portions of what some of the justices and the lawyers had to say. In this portion we`re going to listen to now, Justices Roberts, Kennedy and Scalia question whether skin color should ever be the sole factor in determining school make-up.

The attorney we hear from is with the Seattle School Board. He was Michael Madden. And in this excerpt, the justices refer to Grutter v. Bollinger, the 2003 University of Michigan affirmative action case that Marcia referred to, and also Brown v. Board of Education, the landmark 1954 school desegregation ruling.

JUSTICE ANTHONY KENNEDY, U.S. Supreme Court: Well, the emphasis on the fact that everybody gets into a school, it seems to me, is misplaced, that the question is whether or not you can get into the school that you really prefer. And that, in some cases, depends solely on skin color. You know, it`s like saying that everybody can have the meal, but only people of a separate skin can get the dessert.

MICHAEL MADDEN, Attorney for Seattle School District: Well, like the Michigan cases, sometimes students in the end of the day have an assignment determined by race. Just like in the university cases, at some point, race will be a tipping factor. What`s different, though, we put someone in a basically comparable school.

CHIEF JUSTICE JOHN ROBERTS, U.S. Supreme Court: Well, you`re saying - - I mean, everyone got a seat in Brown, as well. But because they were assigned to those seats on the basis of race, it violated equal protection. How is your argument that there`s no problem here because everybody gets a seat distinguishable?

MICHAEL MADDEN: Because segregation is harmful. Integration, this court has recognized in Swann and in the first Seattle case, has benefits.

JUSTICE ANTHONY SCALIA, U.S. Supreme Court: Well, but...

MICHAEL MADDEN: This district was...

(CROSSTALK)

JUSTICE ANTHONY SCALIA: It seems to me you`re saying you can`t make an omelet without breaking eggs. Can you think of any other area of the law in which we say, "Whatever it takes, so long as there`s a real need, whatever it takes"?

I mean, if we have a lot of crime out there, and the only way to get rid of it is to use warrantless searches, you know, fudge on some of the protections of the Bill of Rights, "Whatever it takes, we`ve got to do it"? I mean, any area of the law that doesn`t have some absolute restrictions?

GWEN IFILL: Justice Kennedy was the one everyone was watching today, because it was Justice O`Connor who had done the swing vote thing last time. What was he like?

MARCIA COYLE: Very skeptical of the school district`s argument. He said that he felt that basically what was happening here in the school districts was racial balancing, and what that generally means is that the school district was trying to apply some kind of a quota. And that is unconstitutional.

The school district argues that it is not seeking set numbers. Race is sometimes a tipping point in making the decision, but there are other factors the school district looks at.

GWEN IFILL: It was interesting listening to Chief Justice Roberts and Justice Alito, both who are knew to the court since the last time they had similar arguments to this. What did they add?

MARCIA COYLE: As you mentioned, earlier in their careers, they expressed skepticism about affirmative action and the use of race as a factor in other contexts. They also appeared skeptical. It does appear, at the end of the day, that the court is divided here, and Justice Kennedy may well hold the decisive vote. But it doesn`t look very good for the school districts.

GWEN IFILL: Well, let`s compare this case to other precedent-setting rulings. The arguments today often boiled down to how to achieve and define equality. Here an exchange among Justices Breyer, Scalia and Ginsburg. The attorney for the Louisville parents was Harry Korrell, and Solicitor General Paul Clement represented the Bush administration.

JUSTICE STEPHEN BREYER, U.S. Supreme Court: Here we have no merit selection system. Merit is not at issue. The object of the people who run this place is not to create a school better than others; it is to equalize the schools.

HARRY KORRELL, Attorney for Parents Involved in Community Schools: I would direct your honor to the district court judges` decision. And there`s a footnote in the decision in which she acknowledged that the schools were not of equal quality, that they provided different levels of education.

JUSTICE ANTONIN SCALIA: Well, of course they`re not, and that`s why some of them were oversubscribed and others were undersubscribed.

JUSTICE STEPHEN BREYER: I didn`t say that they were. What I said was that the object of the school board and the administering authorities was to make them roughly equal. I said that, in terms of curriculum and faculty, they`re about roughly equal.

And, in terms of choice, what you see is a wide variation in choice by those who want to go as to which is their preference among six schools over a period of five years. And that suggests a rough effort to create equality, not an effort, as in Michigan, to run a merit-selection system.

JUSTICE RUTH BADER GINSBURG, U.S. Supreme Court: The point I`m trying to make has been made by others, and let me read from Judge Boudin`s decision. He said the choice is between openly using race as a criterion or concealing it through some clumsier proxy device. If you want to have an integrated school and you cite the school deliberately to achieve that objective, it`s very hard for me to see how you can have a racial objective but a nonracial means to get there.

PAUL CLEMENT, Solicitor General: Well, with respect, Justice Ginsburg, I think there`s a fundamental difference between -- have the same intent with two programs. There`s a fundamental difference if one of them necessarily classifies people on the basis of their skin color and the other does not.

GWEN IFILL: The fundamental differences that the solicitor general was referring to often have to do with whether integration is at its root a good or not. Did this come up in the courtroom today?

MARCIA COYLE: Well, I think it was assumed that integration is good, and I think nobody disputes either that diversity in education, be it at the university level or in elementary and secondary education, is also important.

The government, which we just heard Paul Clement, was arguing that it`s OK to have an objective to have diversity in education. You have to use...

GWEN IFILL: So how do you get there?

MARCIA COYLE: You have to use, he said, "race-neutral means." And this was what Justice Ginsburg was having trouble with. You have a racial objective but race-neutral means to achieve it? How do you do that?

And he responded -- and the parents` attorneys also said -- well, there are other ways. You can maybe build more magnet schools, put more money into teacher salaries. On the other hand, the school districts have provided evidence that those race-neutral means have not been able to secure integrated schools, particularly in the face of increasingly segregated housing patterns in this country.

GWEN IFILL: People on both sides of this case have been really teeing up to it for some time. And they have said and spoken almost in apocalyptic terms about the potential impact. What do the civil rights groups, for instance, say that the impact would be if the court were to eliminate these two cases, these two programs?

MARCIA COYLE: I believe they think that this would be a huge setback, almost a turning-your-back on Brown v. Board of Education. Right now, by some estimates, there are about 1,000 school districts that do voluntary school admissions programs like Seattle and Louisville.

And if the court says that those programs are unconstitutional or the means that`s being used is unconstitutional, then these school districts really do believe that their schools will become segregated again.

GWEN IFILL: Which the parents groups aren`t necessarily arguing for, but they are arguing for their own choice?

MARCIA COYLE: Yes, they are, exactly.

GWEN IFILL: OK. Marcia Coyle, as always, thanks a lot.

MARCIA COYLE: Thank you, Gwen.

(BREAK)

JIM LEHRER: And, again, the other major developments of this day.

The number of U.S. troops killed in Iraq passed 2,900.

And President Bush accepted the resignation of U.N. Ambassador John Bolton. He`ll step down when his temporary appointment expires.

A reminder: You can download audio versions of our reports and listen to them on your computer, iPod, or other MP3 player. To do so, visit the Online NewsHour at PBS.org.

We`ll see you online and again here tomorrow evening. I`m Jim Lehrer. Thank you, and good night.