The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, we have our summary of the news; then major coverage of today's big Supreme Court decisions-- two on affirmative action at the University of Michigan, and one on filtering computers in libraries; plus a Paul Solman report on the no-jobs side of the economic recovery; and the resumption of our honor roll of Americans killed in Iraq.

NEWS SUMMARY

JIM LEHRER: The U.S. Supreme Court today upheld the use of race in university admissions, but within limits. The court ruled 5-4, the University of Michigan Law School could give minority students an edge. But by 6-3, it struck down a point system used in the university's undergraduate admissions. On the steps of the court building, both sides claimed victory.

TERRY PELL: Overall I think this is a big step forward. I think at the end of the day, taken together both decisions make it harder, more difficult and more legally uncertain for schools to use racial preferences. And that's a good thing.

MARY SUE COLEMAN: But I think what this is going to tell universities and colleges is that they can use affirmative action principles, and I think we will see a strengthening rather than a retreat because of what the courts said today. The court sent a very powerful and positive message.

JIM LEHRER: In another major decision, the court upheld a federal law forcing public libraries to use Internet filters. They're to keep online pornography from children. The 6-3 ruling said the law does not violate the first amendment. We'll have more on this and the affirmative action rulings in just a moment. U.S. experts in Iraq worked today to identify people killed in a convoy last week. A number of reports said Iraqi leaders were in the three vehicles, but it was unclear if Saddam Hussein was among them. Coalition forces attacked the convoy last Wednesday, in western Iraq near the border with Syria. DNA tests are planned on remains found at the scene. U.S. administrators announced formal plans for a new Iraqi army today. Recruiting will begin next week. The new force is expected to number 40,000 within three years. In addition, former Iraqi soldiers will start getting support payments up to $150 a month. In Baghdad, a senior U.S. advisor said as many as 250,000 men will be eligible.

WALTER SLOCOMBE: These will be continuing payments, not one-time termination payments. The payments will be at a level which is comparable to though somewhat lower than what they were paid as on active duty. The payments, therefore, will be sufficient to support on a continuing basis a modest but decent standard of living.

JIM LEHRER: Former Iraqi soldiers have staged angry protests since the old military was disbanded one month ago. Last week, one protest turned violent, and U.S. Troops killed two Iraqis. Another American soldier was killed Sunday, in a grenade attack south of Baghdad. Shipments of Iraq oil resumed Sunday, from a port in Turkey. The oil had been stored there for months. Sabotage and looting delayed the movement of fresh oil through a pipeline in northern Iraq. Iraqi officials also blamed sabotage for a fire on a gas pipeline. It happened Saturday, about 90 miles west of Baghdad. Palestinian officials reported today they were nearing a cease- fire deal with Hamas. The Palestinian foreign minister said he expected a "positive" response from the militant group. But the founder of Hamas said Israeli actions were an obstacle. On Saturday, Israeli troops killed a leader of Hamas in Hebron. He was blamed for a deadly bus bombing in Jerusalem earlier this month. The World Health Organization removed Hong Kong today from its list of SARS-infected places. The disease first appeared there four months ago. Today, people celebrated by throwing away their protective masks at schools and street parties. But the city's chief executive warned his people to stay vigilant.

TUNG CHEE HWA: Yes, our name is being removed from the list, but from experiences everywhere else, we have to remind ourselves that this could come again and we really have to be on high alert and we have to be on guard all the time.

JIM LEHRER: Hong Kong lost nearly 300 lives to the virus, but there have been no confirmed cases in nearly three weeks. The epidemic is also ebbing elsewhere, but Beijing, China, along with Taiwan and Toronto, Canada, remain on the infected list for now. Back in this country, Howard Dean made it official today. He's running for the Democratic presidential nomination. The former governor of Vermont addressed supporters in Burlington. He accused President Bush of promoting tax cuts to de-fund major programs, including Social Security and Medicare. He also said the policy of preemptive war is alienating U.S. Allies. Dean opposed the war in Iraq. Former Atlanta Mayor Maynard Jackson died today. He collapsed at an airport outside Washington, and suffered a heart attack. Jackson became Atlanta's first black mayor in 1973. During two terms, he pressed white business leaders to open doors to minorities. He won another term in 1989, and helped plan for the 1996 summer Olympics in Atlanta. Maynard Jackson was 65 years old. On Wall Street today, the Dow Jones Industrial Average lost more than 127 points to close just under 9073. The NASDAQ fell nearly 34 points, or 2 percent, to close below 1611. That's it for the News Summary tonight. Now it's on to the Supreme Court's affirmative action and computer library decisions, plus the jobless economic recovery, and the return of our Iraq honor roll.

FOCUS - AFFIRMATIVE ACTION

JIM LEHRER: The rulings on affirmative action. We begin with some background by Spencer Michels.

SPENCER MICHELS: The two lawsuits against the University of Michigan were the biggest affirmative action cases to go before the Supreme Court in decades. One involved Barbara Grutter, who applied to the university's law school seven years ago. The former healthcare consultant, who was 43 at the time, was rejected despite what she considered strong qualifications. Grutter said she didn't get in because she's white.

BARBARA GRUTTER: I think that I was discriminated against in the admission process, very specifically, because I believe they have different criteria based on race.

SPENCER MICHELS: Law school administrators said they considered race as one of several factors for admission. Jeffrey Lehman is the dean.

JEFFREY LEHMAN: It's not a color-blind society. Opportunity is not distributed without regard to race, and therefore in order to have a racially integrated student body, it is necessary to pay attention to race in the admissions process.

SPENCER MICHELS: But in 1997, Grutter challenged that policy and sued Michigan. Four years later, a federal judge ruled that using race as a factor in making admissions decisions was unconstitutional. That decision was later overruled on appeal. The second case involved Jennifer Gratz. She applied to the university's undergraduate campus at Ann Arbor in '95, and was wait-listed. Gratz, who later went to Michigan's Dearborn campus, became a plaintiff in a class- action lawsuit against the university, which uses a points system to screen applicants. The 150-point index awarded points for different factors, including academic excellence, financial need, and race. She noted that Michigan-Ann Arbor accepted African Americans and Latinos with credentials similar to hers. She spoke to the "NewsHour" in 1997.

JENNIFER GRATZ: I believe I was racially discriminated against, and that's wrong.

SPENCER MICHELS: But Gratz lost. A different federal judge sided with Michigan, citing the "educational benefits" of a racially diverse student body. The Bush administration filed a brief in the cases. In January, the president explained that his administration's brief would argue that race-based admissions policies are unconstitutional.

PRESIDENT GEORGE W. BUSH: Quota systems that use race to include or exclude people from higher education and the opportunities it offers are divisive, unfair, and impossible to square with the Constitution.

SPENCER MICHELS: Today, the Supreme Court upheld the law school admissions policy, but rejected the undergraduate system. Outside the court, both sides responded to the mixed decision. Terry Pell of the Center for Individual Rights represented students in both cases.

TERRY PELL: I think what we are seeing today is the beginning of the end of race preferences, taken together today both decisions raise the bar higher and make it more difficult and more legally uncertain for schools to use race. In theory it's possible to take race into account as one of many factors. The reality is that in practice, taking race into account quickly becomes a smokescreen for the sort of mechanical quotas that the court struck down in the undergraduate case.

SPENCER MICHELS: John Payton was a lawyer for the University of Michigan in the law school case.

JOHN PAYTON: You know, this lawsuit was brought-- both of these lawsuits were brought to prohibit any use of race in the admissions process. The Supreme Court has rejected that challenge. How the undergrad school goes about using race, obviously we have to go back and make some adjustments in that. But I think that we do have a road map on how to do that, and I don't think it's going to be too difficult.

SPENCER MICHELS: Following the decisions, University of Michigan President Mary Sue Coleman pledged to modify the undergraduate admissions system.

JIM LEHRER: And more on today's decisions now from NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the "Chicago Tribune." Jan, welcome once again.

JAN CRAWFORD GREENBURG: Thank you, Jim.

JIM LEHRER: Let's take these two affirmative action cases one at a time. The undergraduate case the vote was 6-3. What did the majority say?

JAN CRAWFORD GREENBURG: That opinion was written by the chief justice. In that case, the court struck down the University of Michigan's undergraduate admissions policy. It said the policy looked too much like a quota. Now, it was... that policy awarded points to applicants based on a variety of factors, and you could get 20 points if you were a member of an underrepresented minority-- if you were an African American, Latino or a native American. If you got 100 points, you were guaranteed admission. So the court today said, "this is just too much like a quota." Race could be determinative almost in every case. The chief justice said that as a result, the policy was not narrowly tailored enough to achieve a diverse student body, and that the undergraduate institution had to go back to the drawing board.

JIM LEHRER: Now, the six who were, including the chief justice, who were with them, included Stephen Breyer, who is usually on the liberal side. That's unusual in this case.

JAN CRAWFORD GREENBURG: That's right. And also Justice O'Connor, who is a justice that we, of course, were watching very closely in these cases. Justice Breyer wrote a separate opinion announcing that he was joining the outcome of this case but not necessarily the reasoning. He said, "I'm going to sign on to Justice O'Connor's concurring opinion in that case." In her opinion, in the undergraduate case, she wrote separately to say that the undergraduate case was unconstitutional in her view because it had many features that the law school program that the court uphold today did not have.

JIM LEHRER: We'll get to that in a minute. Now, what did the three justices in the minority say?

JAN CRAWFORD GREENBURG: Justice Ginsberg wrote quite a passionate decision talking about the very real and lasting effects on racism in our society and why these programs were necessary today, while today there are still very real barriers to minorities entering society and in the work force. She said in her dissent that in some ways maybe the Michigan undergraduate program was better than the law school program. The law school program now didn't have the point system. It looks at people on a case-by- case basis. If I could just read what Justice Ginsberg said: "If honesty is the best policy, surely Michigan's accurately described, fully disclosed college affirmative action program is preferable to achieving similar numbers through winks, nods and disguises." She was troubled by some suggestion that what the schools may do if they're not awarding points to applicants and being open about it is that they'll start looking at symbols, essays by students who say they've overcome obstacles or say they've grown up in disadvantaged neighborhoods, so she thought that maybe the direct way was the better way.

JIM LEHRER: Make sure we understand here, as Spencer said in the piece, there's 150 possible points. If you get 100, you're guaranteed admission.

JAN CRAWFORD GREENBURG: You're guaranteed admission.

JIM LEHRER: You're guaranteed; 20 of those is automatically given to an underrepresented race.

JAN CRAWFORD GREENBURG: That's right. One-fifth of the points you need to get in.

JIM LEHRER: All right. Now let's go to the second case, the 5-4 case on the law school. Now, what did the majority, the five, say on that?

JAN CRAWFORD GREENBURG: This is the ball game. Today's decision in this case, written by Justice O'Connor, is the first time a majority of the Supreme Court has ever said that colleges and university officials can take an applicant's race into account to achieve a diverse student body. That has been a very hard-fought and highly contested issue in the lower courts. Many lower courts have ruled race couldn't be taken into account. For the first time ever today, a majority of the justices said race could be taken into account, and they upheld the law school admissions program at the University of Michigan.

JIM LEHRER: And the law school... explain how the law school system operates differently than the undergraduate system.

JAN CRAWFORD GREENBURG: Sure. As Justice O'Connor made very clear in her opinion today, it's an individualized look at an applicant. The law school acknowledged it's trying to reach a critical mass, as they say, of minority students. In other words, a significant number of minority students who would feel they could speak openly about their views on issues without having to be the token minority or express the minority viewpoint. So to get that critical mass, they would look at the entire... the whole person, the entire person, and do a case-by-case review of that person, taking race into account as one factor among many factors.

JIM LEHRER: And did Justice O'Connor's majority opinion say, "it's a good thing to have diversity in the law school"?

JAN CRAWFORD GREENBURG: She said she fully embraced the notion that diversity has and carries with it important educational benefits. And she embraced the idea advanced by business leaders and military officials, that that benefit in the educational setting then goes out into the working world, in a corporate world where workers are dealing in a global marketplace, and in the military. The court seemed particularly persuaded by a friend of the court brief filed by retired military leaders who suggested that a ruling against Michigan in this law school case would have a dramatic effect on the look of the nation's officer corps because the service academies would be affected.

JIM LEHRER: We're talking here about a 5-4 decision, however, and Justice O'Connor... we don't need to get into inside baseball on the Supreme Court, but is it unusual for the swing-- because that's what she was-- the swing vote to write the majority opinion?

JAN CRAWFORD GREENBURG: I think most people thought that Justice O'Connor would write the majority opinion, because her vote was the one, I think, that people found hard to predict. She often has written opinions in these kinds of race-conscious decisions that governments make.

JIM LEHRER: What did the four in the minority say in that case?

JAN CRAWFORD GREENBURG: This case produced six different opinions, so we have four dissenting opinions from the dissenting justices. Of course, they said...

JIM LEHRER: Rehnquist, Scalia, Thomas and Kennedy.

JAN CRAWFORD GREENBURG: Rehnquist, Scalia, Thomas and Kennedy. And they said, look, the Constitution, the equal protection clause says everyone has to be treated equally. Michigan is treating white students unequally. They're favoring minority students over white students. The constitution is color blind. Therefore, this should violate the Constitution. First of all, Justice Scalia also flagged several areas that people might still be able to mount legal challenges to affirmative action programs. Justice Thomas wrote a quite moving and passionate dissent in which he talked about the stigma that affirmative action carries for some black people because some people may assume you're a beneficiary of affirmative action, a position that he has taken in the past. But the main opinion Justice O'Conner's majority opinion for the court I think surprised many people. In her opinion, she repeatedly referred to Justice Lewis Powell, who had the court's last word on this issue in 1978 in the landmark "Bakke" case. And Justice Powell, a moderate, a justice that O'Connor deeply and greatly admires, also left his mark today.

JIM LEHRER: So from a legal standpoint, like it or not, as you said, the ball game is that if you take these two cases together, that the Supreme Court said you can consider race in some way if you do it the right way.

JAN CRAWFORD GREENBURG: That's right.

JIM LEHRER: In college admission.

JAN CRAWFORD GREENBURG: That's right. That was the big open question. That's been a question that's been open for a generation. The court definitively said today that you can consider race and, as you said, that diversity is a good thing.

JIM LEHRER: Okay. Jan, don't go away. But now we go to Margaret Warner who has some reactions to these two decisions on affirmative action.

JIM LEHRER: Okay. Jan, don't go away. But now we go to Margaret Warner who has some reactions to these two decisions on affirmative action.

MARGARET WARNER: And we get those reactions from the presidents of four publicly funded state universities who will be dealing first-hand with the impact of today's rulings: Mary Sue Coleman of the University of Michigan, obviously the party in this case; Larry Faulkner of the University of Texas, Daniel Mark Fogel of the University of Vermont, and Kermit Hall of Utah State University. Mr. Hall is also editor-in-chief of the "Oxford Companion to the Supreme Court." Welcome to you all.

Ms. Coleman, beginning with you, pick up on Jim's discussion just now with Jan Greenburg. What did you as a university administrator take, what message did you take from the court about where the line is between what is permissible in promoting affirmative action and what is not?

MARY SUE COLEMAN: Well, I felt so good about the decisions today because we absolutely believe that this is a real affirming of the use of race in admissions, and in fact, in other programs that we have at the university. Clearly what the court was telling us is that they want us to use a more individualistic, holistic approach to reviewing applications for undergraduate students as we do for law school students. We are fully prepared to do that, to go back and modify our policies so that our undergraduate admissions looks more like the law school admissions.

MARGARET WARNER: Dan Fogel, what was your interpretation? Do you think the message was clear, or do you think it was in any way a mixed message?

DANIEL MARK FOGEL: I think the message was absolutely clear and very heartening. It's really a victory for students and for the nation that we can use race in a narrowly tailored way to pursue the compelling state interest in building diverse student bodies for the benefit of allstudents. We are very pleased with that decision.

MARGARET WARNER: Mr. Faulkner, pick up on that. Add anything you'd like to to that, but also this question, even in Justice O'Connor's opinion, she was critical of the undergraduate program at the University of Michigan because race was a "decisive factor." Is it clear how you thread that line between being a factor and a decisive factor?

LARRY FAULKNER: I think we have some things to learn about that, but the important thing of the case today was as stated that the court has for the first time in history affirmed the validity and the importance of diversity on our campuses and of procedures aimed at getting there. There's no question that the combination of decisions produced an overall result where procedure is important, technique is important. Some things are going to be allowed and some things will not. And I think we do have to spend a little time thinking about how we thread, through. At this university, we do have holistic admissions reviews, and I think it is possible for us to bring race into those in a permissible way.

MARGARET WARNER: I want to get back to each of your individual cases. But finally, Mr. Hall, just your overall reaction to this decision, and again, for instance, Justice Scalia warned that he thought that this was to introduce a whole new flood of lawsuits, that he didn't think the line was that clear. How do you see that?

KERMIT HALL: Well, I think in the first part it's obvious this is a victory for the autonomy and independence of American higher education. Justice O'Connor's made very clear that universities can as a matter of policy and as a matter of their academic independence use race as a way of promoting diversity. I think that's a very powerful outcome. I also think it's a little bit of a case where the baby is getting cut, but maybe not quite in half the way things turn out. It will, I think, will be obvious over time, but there's going to be a lot of sorting that goes into what constitutes critical mass, and what are, in fact, the appropriate procedures. But like the rest of the colleagues, I agree that this is really a signal moment. Diversity can be realized by the use of race, and for many colleges and universities, that will be significant. But it's also the case, as I believe, that given the admissions process of many universities that are basically open or moderately selective. In the end, it's much more important for highly selective institutions like the University of Michigan.

MARGARET WARNER: Mr. Fogel, from the University of Vermont, you are one of these highly selective public institutions. Explain to us how you go about your affirmative action program now and whether this ruling will make any difference.

DANIEL MARK FOGEL: Our process is fully compliant with this decision and with Justice Powell's landmark finding in the "Bakke" case. We do a holistic review of our applicants. Race is one factor we consider among many others: Counselor's reports, letters of recommendation, extracurricular activities along with college board scores, grades, leadership and so on to build a diverse class for the benefit of all students. I think there's one element we haven't mentioned tonight, Margaret, and that is that the court said that a narrowly tailored remedy should be time limited and look forward to the day when we wouldn't need affirmative action. I think it behooves us now to work very hard over the next decades, keeping the tool of affirmative action in the tool chest to make sure that all students have equal access to very strong preparation for post-secondary education.

MARGARET WARNER: That's right. Justice O'Connor wrote that she, in 25 years, she didn't think the court should have to revisit this. Ms. Coleman, at the University of Michigan, one of the arguments you all made to the court was that this holistic approach, that this reading every application individually, was just impractical for your undergraduate program because you have, what, 13,000 applicants for 3,800 places, a huge incoming freshman class. The court rejected that argument, just said that was not a defense. How are you going to go about... I mean, how much is it going to cost you? How much bigger an operation are you going to have to have if you want to take the same process you have at your much smaller law school class and apply it to the huge incoming freshman class?

MARY SUE COLEMAN: We had a modified procedure where we did look at each application separately. We have more than 25,000 applications for 5,000 spots. What the court has said to us... we did use a screening procedure, which was the point system. We looked at many factors. We looked at socioeconomic status, special talents. We looked at whether or not students' parents or grandparents went to the university, we looked at geography. We looked at many, many different factors, but we did have the screening and point system. What we'll need to do now is focus more on the individualized, holistic look and not have the point system anymore. Clearly we'll probably be adding some admissions counselors. But we don't think it's impossible for us to do it. We will certainly be looking very, very carefully to make sure that we comply with what the court has told us, but I'm not at all concerned, and I think we'll have our new procedures in place by the fall.

MARGARET WARNER: Mr. Hall, what's the impact likely to be at Utah State?

KERMIT HALL: I think the impact is going to be very great at all. Our classes are pretty much determined, as is often the case with land grant universities, by basically open admissions. We do select out a few students who are clearly inadequately prepared. One of the pluses I think of all of this, however, is, as President Coleman indicates, that the entire admission process in higher education ought to be more attuned to individual characteristics and ought to be a little more sympathetic than just doing it by the numbers. In an interesting way, I think this is a good message for all of higher education as it sifts and sorts who should be given admission. But again, for our institution, it's interesting, but I don't think it's going to have much of an impact.

MARGARET WARNER: By your description of your institution, you meant basically what? 80 85 percent of the students who apply do get in?

KERMIT HALL: Yes, that's absolutely the case. Even the students who are not given immediate admission will be admitted in a subsequent semester, or they'll go on to do some work in a two-year college and then they'll come back to us. One of the interesting divisions here is really not over race per se, but in our state it's a division between rural and urban. Often the rural schools simply don't provide a level of preparation for students so that when they come to the university they're able to succeed. That's one of the variables that really works I think here in Utah.

MARGARET WARNER: Now, Mr. Faulkner, of course at Texas, that is one of these elite state universities, and you all, in response to an appeals court ruling several years ago, established that struck down race-based admissions, you established this new policy. Explain that briefly and whether this ruling will have any effect on that.

LARRY FAULKNER: Well, the ruling will have a big effect on us, because Texas, since the "Hopwood" decision of 1996, has been operating in a sharply enforced race-neutral environment. It's been illegal for us to consider race in any decision relating to admission. This decision today puts us on the same basis as the rest of the country, so it's a big change for us.

MARGARET WARNER: But you have this program in which the top 10 percent of any... in any high school in Texas, if they want to come to you UT at Austin, they can. Would that continue?

LARRY FAULKNER: That's correct. That's not a program of ours. It's a state law. State law in Texas mandates that any student graduating in the top 10 percent of a high school class is guaranteed admission to his or her choice of public institution. That law will remain on the books, and it will be part of the scene going forward. There will be some interesting interactions between affirmative action policies and the continuation of top 10 percent law.

MARGARET WARNER: Do you see taking this decision now in a way that you could, for instance, reinstitute affirmative action policy, let's say, in admissions to your graduate schools, your law school and so on?

LARRY FAULKNER: Well, I think the law or, excuse me, the court decision today allows us to reinstitute affirmative action in graduate and professional programs as well as in undergraduate programs as long as we do it in a way that's compatible with the way the court staked out. The graduate and professional program areas are particularly pressing for us. We've done some good things with the top 10 percent law at the undergraduate level, and in fact, have built representation among minorities here at UT. That exceeds in several dimensions what we were able to do previously. So there's been some plus there, but the graduate and professional areas are ones where we have not been able to institute alternative approaches that even approach what we were able to do with affirmative action, so it would I think particularly pressing for us to get on with reinstituting those procedures in those domains.

MARGARET WARNER: Ms. Coleman, this decision technically only applies to publicly funded universities and colleges, but I know all you university presidents know one another. Do you think this will have a ripple effect on private colleges and universities as well?

MARY SUE COLEMAN: I absolutely do because of other provisions in federal law. If any university receives federal funds, then they're going to be subject to these same provisions. So we believe that this ruling is extraordinarily important not only for public universities, but also for private universities. I also believe that the way the court ruled today, that is, upholding the use of race in admissions, also will have profound effects on keeping our financial aid programs that are helping minority students, on some of our mentorship programs and outreach programs. So I think the ripple effects are far greater than in the admissions process. And that's why it's so exciting and such a wonderful decision for us today.

MARGARET WARNER: Mr. Fogel, your thoughts on the wider ripple effect beyond universities like yours.

DANIEL MARK FOGEL: Well, I agree with President Coleman. I certainly want to congratulate her and her colleagues for having carried this torch for higher education and for society at large. It will affect a broad domain for both public and private institutions beyond theadmissions process. As I said before, I think the challenge for us in the decades ahead will be to make sure that all students have an opportunity to be well prepared for post- secondary education.

MARGARET WARNER: Mr. Hall, go back to a point you made earlier and just explain to us just a little more, though. You wrote in a piece recently that the idea that this decision was going to "change the face of public higher ed" was simply not true. You had some interesting statistics about really how few universities are in this elite tier represented by your colleagues here on this panel.

KERMIT HALL: Yes, well, it is the case that about 75 percent or so of all American students, college students enter based on either open admissions or moderately or modestly selective basis. I think the implications of that are important, because what's going to happen is I think my colleagues emphasized, but as Justice Scalia pointed out very clearly, what's going to happen is that the focus is going to change to financial aid. It's going to change to programs that have historically excluded all but minorities in terms of being prepared to go into higher education, so I think that's going to be the new battlefield. And the extent to which this concept of critical mass can be applied I think will be very, very interesting. It is clear to me that the big hurdle for all of American higher education is the cost, and with it the financial aid to support students to be able to get what is increasingly a private good but one that depends very much on a strong level of public support. Unfortunately what we've seen over the last decade or so is an erosion of that public support, and the privatization of this good, and I think let us only hope that one of the results of this is to pull us back to a much stronger public commitment in supporting all students who want to get into higher education.

MARGARET WARNER: Kermit Hall and presidents all, thank you very much.

FOCUS - LIBRARIES AND THE INTERNET

JIM LEHRER: Now, today's other major Supreme Court decision: Upholding the use of filters to block Internet pornography on computers in public libraries. And once again to Jan Crawford Greenburg. Jan, first, the facts of this case.

JAN CRAWFORD GREENBURG: This case involved a challenge to the children's Internet protection act. That's a law congress passed in 2000 to protect children from harmful material that they may access on the Internet, at libraries. It required libraries to install filters on their computers that patrons use. If they don't install these filters, then the libraries would lose federal money.

JIM LEHRER: And the argument for the filters-- and the people who argued that case before the Supreme Court in a nutshell-- to protect children.

JAN CRAWFORD GREENBURG: That's right. The Bush administration also, President Clinton actually had signed this bill into law, and the Bush administration stepped in and said this was an important law because we need to protect children from obscene material, pornography and other things they could easily access on the Internet. Now, on the other side...

JIM LEHRER: The library association and folks like that.

JAN CRAWFORD GREENBURG: A group of libraries, patrons, some web site operators have said, "wait a minute. This is all well and good that we want to protect children, but this also infringes on the first amendment free speech rights of adults," because these filters are extremely imprecise. They block much, much more information than even should be blocked. In fact, the argument the lawyer representing these organizations said, tens of thousands of sites are improperly being blocked. So their point was adults who are going into the libraries to do research or whatever are not accessing material that under the First Amendment they have a right to see.

JIM LEHRER: The majority didn't go with them. The majority went the law 6-3. In other words, the vote was 6- 3.

JAN CRAWFORD GREENBURG: That's right. Actually, this is kind of a tricky case because there wasn't a majority. It was a plurality opinion written by the chief, but he could only get three justices to join him to say that this law presented no problems under the First Amendment. So the chief's opinion got the votes of three justices, not enough, obviously, one more he needed. And then Justice Kennedy and Justice Breyer who wanted to uphold this law wrote separate opinions. They said... so their opinions actually will in a way be the most important, because they're going to limit what the plurality says. In those opinions, Kennedy and Breyer said, "we think this law should be upheld because the libraries can simply turn these filters off." It's not so burdensome on adults before they go to the libraries to go up to the front desk and say, "I'm an adult. I'm doing research or I just want to use the computer. Turn the filter off." Kennedy and Breyer stressed that essentially that the law would require that and that the adults didn't have to explain why they wanted the filter off so they wouldn't be embarrassed or be doing anything that they wouldn't want the front desk person to know about. If, in fact, the libraries refused to do that, then an adult patron could come back and say, "I have a constitutional right to this material," and raise a new legal claim.

JIM LEHRER: So in other words, this isn't finally resolved?

JAN CRAWFORD GREENBURG: It is, essentially. Because what this means is libraries now are going to have to go out and install this filtering software on their computers in order to get the federal money. This law has never taken effect. It's been blocked by a special three-judge court, and many libraries have never gone through the hoops to install these filters.

JIM LEHRER: There could be fights over how they... how they use...

JAN CRAWFORD GREENBURG: But it's how it's applied on case-by-case basis. That's how the law could be challenged. That's where this law is still susceptible. But of course the libraries and some of the adult patrons had not wanted that to be an issue at all.

JIM LEHRER: But the bottom line today is, like it or not, libraries have to put these filters on.

JAN CRAWFORD GREENBURG: If they want the federal money, that's right. And the adults, as Justice Kennedy and Justice Breyer suggested in their separate opinions, won't be burdened because they can just ask for these filters to be turned off. The interesting thing is that's not really in the law, but Justices Kennedy and Breyer suggested it was. So it is.

JIM LEHRER: We'll see what happens next on that one. Thank you very much, Jan.

JAN CRAWFORD GREENBURG: You're welcome.

FOCUS - THE JOBLESS RECOVERY

JIM LEHRER: And now to the economy. Our business correspondent, Paul Solman of WGBH-Boston, has been chronicling the coming of the jobless recovery. Here is another of his reports; this one on job losses in the changing world of manufacturing.

PAUL SOLMAN: There's been much talk in this so-called "jobless recovery" of white-collar job loss. In fact, though, this recession, like its predecessors, is still mainly a working class phenomenon. Of the 2.5 million net jobs lost since the recession officially began in march 2001, fully two million of them have been in manufacturing. For a blue-collar worker these days, it seems, even a lunch break can be risky.

ED LANDRY: We went to lunch and our jobs went to China.

PAUL SOLMAN: Ed Landry started as a machinist after military service in the early days of Vietnam.

ED LANDRY: I come out of the service, I went to work where I was working, and last September, they told us that they've decided to buy the product in China instead of having it made here in the united states.

PAUL SOLMAN: Reporter: So at age 62, Landry's back in school at a state-run retraining program outside Hartford, Connecticut. Fellow student Louis de Claybrook lost his factory job making automotive drive shafts more than a year ago. Any hot prospects at the moment?

LOUIS DE CLAYBROOK: No, not at the moment, no.

PAUL SOLMAN: None?

LOUIS DE CLAYBROOK: None. After a year I would say, of being unemployed and having no one say, "sure, come on aboard, we'd love to have you," you become numb to it.

PAUL SOLMAN: De Claybrook has been turned down often, even by a supermarket.

LOUIS DE CLAYBROOK: I was told that we'd get back to you.

PAUL SOLMAN: Did they?

LOUIS DE CLAYBROOK: No.

PAUL SOLMAN: This is for just A...

LOUIS DE CLAYBROOK: Just a bagger job or whatever they do there. You stand in the... at the end of the aisle and put someone's groceries in the bag, and stack the shelves when need be.

PAUL SOLMAN: And you couldn't get that job.

LOUIS DE CLAYBROOK: I couldn't believe it myself. I couldn't get the job.

PAUL SOLMAN: Dan Methot used to build aircraft engines at Pratt and Whitney, but...

DAN METHOT: People aren't flying, companies are filing bankruptcy, they're laying off thousands of people.

PAUL SOLMAN: How did you feel about it?

DAN METHOT: Nothing I can do about it. Go with the flow. Start over again. It seems to be something of the American way now.

PAUL SOLMAN: Job loss in manufacturing. It has indeed become the American way, because of forces that have been building for decades -- like the global migration of labor, which remains inexorable.

ED LANDRY: They're laying off from the plants in Mexico. So even the ones down in Mexico, they're looking for cheaper labor. So they're going to move the plants from Mexico... who knows, they'll go to China. Who knows, Korea. Formosa. Who knows where they're going to end up going. Wherever the cheapest labor is.

PAUL SOLMAN: But wherever factory work's headed next, it isn't back to the U.S. On the contrary, the exodus has picked up speed due to the high dollar of recent years. Americans found it increasingly cheaper to buy from abroad; foreigners found it increasingly expensive to buy American. No surprise that U.S. factory labor found itself overpriced. Millions of manufacturing jobs have survived, of course. But that's because American firms have become more productive. In fact, increased productivity-- getting more output from each hour of labor-- is in a sense, the point of this story, and may be the key factor in understanding the "joblessness" of "jobless recoveries." The phrase itself was actually coined in the recovery from the last recession in the early '90s by economist Nick Perna.

NCHOLAS PERNA: I was writing my weekly newsletter. I'm looking at the numbers and I said, "there's no job growth. There's no job growth." I'm looking for a catchy phrase and "jobless recovery" just popped out.

PAUL SOLMAN: So this recovery looks like that recovery.

NICHOLAS PERNA: Yes, in fact, maybe even a little bit worse. I think by this time after that '90-'91 recession, jobs were already growing again. So an anemic recovery and pretty decent productivity means no room for job growth.

PAUL SOLMAN: Because?

NICHOLAS PERNA: Well, what happens is that you can produce more with either the same number of people, or if you're really unlucky in coming out of a recession, you can produce more with fewer people. That's where we are today. So what we end up with is declining jobs, and now we're into the second year of decline. This is a very severe jobless recovery.

SPOKESMAN: ("Meet Joe King" 1949) Hey, what's that gadget, a television?

SPOKESMAN: No, it's a time machine. Just pull that lever.

PAUL SOLMAN: Now, economists are clear: In the long run, high productivity is the greatest thing since the invention of the wheel. In fact, the invention of the wheel was high productivity-- getting more out of the same amount of labor. And continually getting more is what's made us richer, even though productivity, economists remind us, implies that infamous phrase of free- market economics: "Creative destruction." This is a 1950s depiction.

SPOKESMAN: ("Meet Joe King" 1949) But look what a new invention did to my grand-pop. For 25 years he knocks his brains out in the wagon-works, and along comes the gas mobile. ( Explosion ) Need I tell you what happened to grand pop?

PAUL SOLMAN: The cartoon's narrator, however, provides the economist's reassurance.

ANNOUNCER: The history of our country proves that new inventions create thousands of jobs for every one they displace. So it wasn't long before your grandfather had a better job at more pay for less work.

PAUL SOLMAN: The problem is that in a system of creative destruction, people have to make a transition from what they used to do to the next big thing. Unfortunately, that transition may now be taking longer than it has in decades. The average jobless stint is up to 19 weeks, the longest since 1983. Moreover, many former workers have now dropped out of the labor force entirely having become so discouraged trying to make the transition they're not even looking for a job any more.

LOUIS DE CLAYBROOK: You see the news, you see people robbing banks, and it's all related to what I'm talking about: The economy is really bad.

PAUL SOLMAN: Meanwhile, what blue-collar jobs there are have changed so dramatically, workers like Louis de Claybrook must get themselves retooled in CNC, computer numeric control technology, to work at a place like prototype, for example, on the other side of Hartford, a company that creates molds for parts made of plastic.

PAUL SOLMAN: So when Dustin Hoffman gets told by the guy who takes him around and puts...

SPOKESMAN ( Laughs ) Oh, you're the first guy to come up with that one, Paul.

PAUL SOLMAN: Yeah, I know. No, no, no.

ACTOR ("The Graduate" 1967): I just want to say one word to you, just one word.

ACTOR: Yes, sir?

ACTOR: Are you listening?

ACTOR: Yes, I am.

ACTOR: Plastics.

PAUL SOLMAN: Was it a correct piece of advice at the time?

ACTOR: There's a great future in plastics.

SPOKESMAN: Back when "The Graduate" was made, it definitely was.

ACTOR: Enough said. That's a deal.

MURRAY GERBER: And in fact, the plastics industry up until the beginning of this recession was the fastest-growing manufacturing segment in the whole country. We were growing, as an industry, at 9 percent a year and the rest of the economy was growing at less than 5 percent.

PAUL SOLMAN: Murray Gerber sold this company to Victor de Jong in 1999.

VICTOR DE JONG: This is a bearing cage. These parts used to be made out of machined stainless steel, and would cost anywhere from $500 to $1,000 apiece. We have built a mold, and the parts cost $30 or $40 or $50, depending on the size.

PAUL SOLMAN: De Jong understood that despite the continuing plastics boom, competition from abroad and new technology meant he had to keep pushing productivity.

VICTOR DE JONG: When I got here, there were 92 people, and I saw ways to reduce it from 92 down to about 60. And yet we were able to produce as much and more with that level of people.

PAUL SOLMAN: So de Jong has increased productivity by more than a third in less than four years. But in the process, the jobs here have become so demanding, it's now hard to fill them, even with all the unemployed blue collar workers out there.

SPOKESMAN: So... 800.

PAUL SOLMAN: No wonder, then, that workers like Louis de Claybrook are trying to upgrade their skills.

LOUIS DE CLAYBROOK: Cycle start. It's a matter of starting all over again, the best way I can.

PAUL SOLMAN: But it isn't easy.

SPOKESMAN: Got to trim that up.

PAUL SOLMAN: Ed Landry worked 38 years at his last job.

ED LANDRY: Thirty-eight years didn't mean nothing to them. You know, you can take your pension and go or you can take a lower paying job. That's it.

PAUL SOLMAN: But isn't the whole point that people like yourself will be retrained for higher level, more sophisticated jobs, and that's how a free market system works?

ED LANDRY: Well, where... once I'm trained, where do I go for a job, China?

PAUL SOLMAN: No, Ed Landry could supposedly work at a place like prototype plastic, where they use the same Bridgeport machines he's now being trained on. Unfortunately, however, these machines are becoming obsolete, and the Bridgeport Company itself is out of business, another manufacturing casualty. Of course, new industries are being created all the time, says economist Alan Krueger.

ALAN KRUEGER: I think that the American economy has demonstrated over the years a tremendous amount of flexibility. And if you look at, you know, trying to forecast what jobs will be here 20 years from now, 30 years from now, many of them are going to be in occupations that don't currently exist. I did the exercise of going backwards in time and saying, how much of the job growth from 1960 through 2003 is in occupation categories that did not exist in 1960, and it's close to half.

PAUL SOLMAN: But that's thinking long-term again. In the career lifetime of the workers here, says economist Michael Zweig, the available jobs are as well-known as they are low-paying.

MICHAEL ZWEIG: Security guards, home health aides, teacher aides, restaurant workers, waitresses, that kind of thing, those are three out of every four new jobs that are going to be created in this country in the next ten years, have nothing to do with high tech. They have nothing to do with the kind of skills that you need to make a lot of money in the technical end of this economy. So just saying, "oh, let's have everybody have these skills and we'll all go to heaven, you know, holding hands," that's not how it works.

PAUL SOLMAN: And it's certainly not how it's working in manufacturing at the moment, for the two million blue collar workers who've lost their jobs since 2001, and can't find new ones or even get a supermarket gig in the current jobless recovery.

RECAP

JIM LEHRER: Again, the major developments of this day: The U.S. Supreme Court upheld the use of race in university admissions, but within limits. The court also upheld mandatory Internet filters at public libraries. They're to keep online pornography from children. And U.S. administrators announced formal plans for a new Iraqi army. Recruiting will begin next week.

FINALLY -HONOR ROLL

JIM LEHRER: And now before we go, we resume our honor roll of American service personnel killed in Iraq. We discontinued it when major hostilities ended in Iraq. But since then, 56 American troops have died there, accidents as well as fire fights. As before, we'll use the official defense department list of fatalities and photographs as they become available. Here, in silence, is the first group of 33.

JIM LEHRER: We'll see you online, and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.