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Episode #1823
Affirmative Action Report
Brown: Natalie Bullock Brown,
host
Muller: Chip Muller,
producer
Cash: Regi Cash, student, Columbia University
Krislov: Marvin Krislov, Vice President and General Counsel,
University of Michigan
Gratz: Jennifer Gratz, anti-affirmative action plaintiff
Mahoney: Maureen Mahoney, University of Michigan lawyer
Scalia: Antonin Scalia, Associate Justice of the US Supreme
Court
Robinson: Vernon Robinson
Williams: Harry L. Williams
Daye: Professor Charles Daye
M: Unidentified Male
F: Unidentified Female
Brown:
Affirmative
action—it’s a hotly debated topic. But are the
arguments for and against the policy based on a coherent understanding
of the issues? We’ll discuss both sides of affirmative
action next on Black Issues Forum.
Voiceover:
This program was made possible by contributions to UNC-TV
from viewers like you. Thank you.
[THEME
MUSIC]
Brown:
Good evening, everyone. I’m Natalie Bullock Brown,
your host tonight. Thank you for joining us.
Brown:
Since the race-based admission policies of the University
Michigan were challenged as potentially un-constitutional
late last year, there’s been a firestorm of debate over
affirmative action. In April, the United States Supreme Court
heard arguments concerning affirmative action, in what’s
being called an historic and landmark case. Tonight we’ll
talk with a panel of guests to examine the issues around the
affirmative action debate, and look at how the Supreme Court
decision might impact North Carolina.
But first,
producer Chip Muller, who attended the US Supreme Court hearing
in Washington, DC, shows us how the affirmative action case
could impact local students.
[SOUNDS
OF RALLY, CROWDS CHANTING]
Muller:
Men and women from as far away as Illinois rallied in
front of the US Supreme Court in support of affirmative action
in college admissions.
M:
I feel it was instituted to level the playing field somewhat,
and it should only be rescinded when we feel race is no longer
an issue in the United States.
Muller:
At state, decades of college admission policies that give
black and Hispanic students a leg up at schools like Carolina
and the University of Michigan.
M:
We consider if someone is an international student. If
someone’s overcome particular individual barriers, and
yes, we also consider race and ethnicity. But we consider
a variety of factors, and in fact, what happens is we compose
a very diverse, exciting class. The benefits are there and
documented for both majority and minority students.
Muller:
But that’s not any consolation to one woman who
got rejected. Jennifer Gratz, a strong student, was rejected
by the University of Michigan in the 1990s.
Gratz:
Had I been on Ann Arbor campus, I would have had the opportunity
to interview and possibly internship or receive jobs with
companies around the country and even possibly around the
world. It’s very difficult to say exactly how people
are harmed by this, only we know that our lives would be different
had we had a fair chance and that opportunity.
Muller:
She sued the University for discrimination. Her case and
another one just like it against the University of Michigan
Law School made their way through the courts. Sometimes Michigan
won, sometimes they lost. The US Supreme Court decided to
settle the matter.
In an
indication of the importance of these cases, for only the
second time in history, the Supreme Court released audio of
the proceedings. In one interchange, Justice Antonin Scalia
took University of Michigan lawyer Maureen Mahoney to task
for the University’s admissions policy.
Mahoney:
It looks at all potential contributions to diversity and
what the evidence shows in this case is that it is common
for white applicants to be admitted with lower grades and
test scores than even minorities who are rejected—
Scalia:
Does the constitution prohibit discrimination against
oboe players as opposed to flute players?
Mahoney:
No, Your Honor.
Scalia:
Does it prohibit discrimination on the basis of alumnus’
status?
Mahoney:
No, Your Honor.
Scalia:
But it does prohibit discrimination on the basis of race.
Mahoney:
But the question is whether this is prohibitive discrimination.
And the answer that we would ask this court to give is that
a minority applicant brings something special. They are not
similarly situated to the white applicant who has the exact
same grades and test scores.
Muller:
But in the Supreme Court, the sword cuts both ways. Justice
Stephen Bryer challenged the plaintiff’s attorney by
giving voice to supporters of affirmative action.
M:
And we think, from the point of view of business, the
Armed Forces, law, etc., that this is an extraordinary need
to have diversity among elites throughout the country, that
without it the country will be much worse off. All right,
now, how can you say, or can you say, that isn’t extraordinary?
That isn’t a question of life or limb for the country?
M:
Your Honor, because there are important constitutional
rights at stake, and those rights are the right to equal protection,
and a mere social benefit, that is, having more minorities
in particular occupations or the school simply doesn’t
rise to the level of compelling interest.
Muller:
But some students who say they’ve benefited from
affirmative action, say that in today’s world, even
highly qualified students of color cannot count on entry into
the world’s elite institutions without formal assistance.
M:
What I did in high school stands alone. I deserve to get in
on my own merit, but at the same time, there was probably
someone, maybe a white student, that had the equal high school
achievement that I did, and I think without affirmative action,
without someone saying there’s a pressure to say, “All
right, maybe we should look to diversify,” I don’t
know if I would’ve gotten in.
Muller:
So, how will the Supreme Court rule? UNC law professor
Jack Boger gives a prediction.
Boger:
I would not be surprised to see the Court rule in favor
of some use of race, some affirmative action principles. I
think the outcome for the particular practices at the University
of Michigan’s engaged in is a little less certain. I
think the law school, which uses race as a plus factor with
no points assigned to it, is probably a little safer than
the undergraduate schools which use race as a point-weight
in making their decisions, but even that’s hard to predict.
Muller:
A spokesperson says that Justices will likely release
their opinion in July; that’s when we’ll find
out if they want to keep things as they are, or force colleges
and universities across the country to find other ways to
achieve diversity on campus. In Washington, DC, I’m
Chip Muller, UNC-TV.
Brown:
And now to help us understand what’s at the heart
of the affirmative action debate a little better are our esteemed
guests. First, Vernon Robinson, a two-term member of the Winston-Salem
City Council. Mr. Robinson filed the successful lawsuit that
eliminated both the racial and gender quotas for membership
on the UNC Board of Governors, and the blacks only scholarships
at UNC-Chapel Hill, Appalachian State, North Carolina State,
and UNC Charlotte. Also, Charles Daye, Brandis professor at
the UNC School of Law who signed the legal brief principally
authored by his colleague Jack Boger and filed with the Supreme
Court in the University of Michigan case. And last but not
least Dr. Harry L. Williams, associate vice-chancellor for
diversity at Appalachian State University and a proponent
of affirmative action. Welcome to all of you and thanks for
joining us.
[GROUP
RESPONDS WITH THANK YOUS]
Brown:
Let’s start off by defining terms. I’m going
to start with Professor Daye. What is exactly affirmative
action?
Daye:
Well, today affirmative action has come to mean many things
to many people. It is hard to come up with a single definition,
I think, that would satisfy everyone. A page of history is
revealing. Affirmative action started—the term was created
by a young black lawyer, Hobart Taylor, working with Vice
President Lyndon Johnson to craft an executive order in the
employment field as a way of assuring that employers were
complying with anti-discrimination law. Since then it has
come to be used as a way of providing opportunity to those
who might be otherwise closed out because of a history of
racism and prior discrimination in America.
Brown:
Thank you, Mr. Robinson, it seems that the University
of Michigan was essentially accused of discrimination. We
heard in Chip Muller’s piece the word, prohibited discrimination.
Can you explain what that means?
Robinson:
Well, racial discrimination faces the highest scrutiny
under the constitution and in order to get away with it you
have to demonstrate to two tests. One is that it is narrowly
tailored and secondly that it serves a fundamental governmental
interest. Essentially the plaintiffs argue that it doesn’t
do either. It is not narrowly tailored nor does it serve a
compelling state interest. Affirmative action, very few liberals
are willing to admit that they believe in racial discrimination.
Some do but most cover it up with different words. They are
ashamed that they are discriminating on the basis of race
so they credit—couch it and set it aside to goals or
affirmative action but that hampers the debate. Folks need
to be honest and say, “We believe that racial discrimination
should be used.” I’m sort of disappointed the
extent my colleagues do that, that what is going on at Michigan
or the University of North Carolina is state-sponsored, unconstitutional
racial discrimination. End of story.
Brown:
One of the terms that you just mentioned that you said
people use sort of interchangeably with affirmative action
is quotas. I want to go to Dr. Williams. Is there a difference
between a quota system and affirmative action?
Williams:
Most definitely. First let me add my thanks for having
us on this show. I love Black Issues; it is a wonderful
show.
Brown:
Thank you.
Williams:
I believe in what you are talking about and what you are
doing. I really believe wholeheartedly in affirmative action
and diversity. Now, affirmative action as it is today, I really
do believe is going to end but diversity will thrive. Diversity
is the key to trying to achieve an adequate representation
of students across our nation’s colleges and universities.
I am very encouraged about what is going to happen in the
Michigan case. Professor Boger mentioned his prediction on
the outcome. I think he is right in terms of affirmative action
will not completely go away but it will die according to my
friend here when Lyndon Johnson coined the phrase in 1965
and with his efforts to try to use diversity to help federal
contractors. That is going to phase out. But as a nation,
as a society, we value diversity and I believe in that wholeheartedly
and we will work together because diversity is good as a nation.
Brown:
Mr. Robinson, I just want to bounce back to Mr. Robinson
because you seem to take issue with just the idea of affirmative
action not being called exactly what it is which you are saying
is racial discrimination. How do you feel about diversity?
Robinson:
Well, the truth… I believe in diversity and I think
we’d be better served with more conservatives on the
law school faculty or on the editorial staff of the Raleigh
News and Observer, but the truth is there is no distinction
between quotas and affirmative action. It always degenerates
into a quota system. The proof is that success of these problems
or these programs are always measured by statistics and the
percentage of minorities in some program. If a certain quota
is found that they have hit then that is a success. Universities
all over the country brag or lament, ring their hands that
they didn’t hit the number that they wanted to get.
And they call it a target or they call it a goal but if you
are looking for a number and the success of the program is
defined as hitting that number of minority students, then
that is a quota. We need to call it what it is.
Brown:
Okay, Professor Daye, I know you wanted to say something.
Daye:
Well, Brother Robinson has hit on a number of the absolute
myths about affirmative action. Let’s see if we can
clear away some of the brush. Number one, discrimination is
unlawful. Thoughts. If a person going to the doctor accuses
a competent medical practitioner instead of an incompetent
doctor then that is discrimination against the incompetent.
Who would think there is anything wrong with that? Number
two. If we are going… The constitution nowhere outlaws
discrimination. The 14th Amendment was adopted
to prohibit subjugation of the former slaves. The first enactment
after the 14th Amendment was adopted was the Freeman’s
Bureau—the first affirmative action program in the United
States. Second, or third—one of the myths is that there
is no distinction between a quota and a system of inclusion.
Bakke taught us in 1978 in the United States Supreme Court,
they held a quota unlawful because you can’t set aside
seats. That’s a quota. But you can, said Justice Powel,
consider many factors that will contribute to educational
value including a student’s background, race, gender,
etcetera, etc. So if it is one little factor… Now the
third myth that is out there is that affirmative action is
really pushing out a whole lot of white people. Let me give
you an example, 200 students apply for 100 seats. Now, all
are white. When it is all said and done there will be 100
white students not admitted. Add affirmative action, admit
one black student, now we admitted 99 white students and one
black student. Guess how many white students think they’ve
been excluded?
Brown:
One hundred and one.
Daye:
One hundred and one. So it absolutely overstates. Affirmative
Action has been a tiny, small part of the overall consideration
of how one composes a class that generates a ferment of ideas.
The Court has mentioned that in some cases we could talk about.
Brown:
I know, Mr. Robinson… You want to get back in.
Robinson:
I didn’t say that discrimination was illegal. The University
of North Carolina uses legacies all the time. My point was
there are different types of discrimination and I said clearly
that racial discrimination is illegal to the extent that it
doesn’t meet the two tests. And the debate over Michigan
is whether it fails both tests as a matter of fact and folks
have different views. But my colleague talked about affirmative
action—let’s look at undergraduate admissions
at the University of North Carolina. Roughly a third of the
applicants are all admitted with a couple of exceptions. All
of those exceptions are the disfavored race—whites or
Asians. The bottom third is rejected virtually across the
board. Those admitted in the bottom third are all the favored
race. In the middle, I’ve seen the print out, white
applicant, rejected, white applicant, rejected, white applicant,
rejected, white applicant, rejected, black applicant, admit,
white applicant, rejected on page after page, after page,
after page. And to the extent that the University of North
Carolina continues those admission policies they better get
some lawyers out of law school because they’ll be sued
too.
Brown:
Okay.
Daye:
Let me make a point.
Brown:
I was going to ask you about the educational value of
affirmative action or of diversity of …
Daye:
I want to get into that but I also want to add something
to Mr. Robinson.
Brown:
Sure.
Williams:
I served as the director of admission—undergraduate
admissions at North Carolina’s NC State for two years
and I served as associate director of admissions for 12 years
at Appalachian State University so I’m in the room when
we are looking at applicants and we’re looking at a
host of factors when we are determining a mix in our class.
It is good to have a variety of people in your class when
you are trying to make up a college class. We look at socio-economic
factors, we do look at—we’re still under Bakke
the last time I checked. Bakke is the law of the land. Five
Supreme Court justices supported Bakke.
Brown:
Remind us of what Bakke is.
Williams:
Bakke is a Supreme Court case in 1978 where a young man
applied to medical school and he was denied admissions and
as our professor stated here he won that case but Justice
Powel said in looking at all of the evidence we still can
use race as a factor when we’re determining—as
one factor, and that is what we are getting with this Michigan
thing. They are saying, they are just pulling the race out
and making that a big, big issue. They are saying that you
can use race as a factor. In the law school at Michigan they
are not putting a point system in place. The undergraduate
school program—they have a point system and that is
where we have a problem—when you put a point system
in place there.
Brown:
Let me ask you this. So then, what would you say is at
the heart of the Michigan case? You said that they are pulling
race out as the issue. What is the issue?
Williams:
I think at the heart of it is that out of 150 points that
they come out and they put 20 points for race and I believe
12 points for your SAT score if it is the maximum there.
Robinson:
That is in the undergraduate.
Williams:
That is the undergraduate. At the law school they do not
use that. They use a host. They look at socio-economic factors,
they look at the age and they take into consideration if you
not a normal age student in terms of a traditionally aged
student of 18 or above or if you are an older student coming
back to college. They take that into consideration when they
are making up the class because they realize that when we
have a mixed class that is going to add value. Diversity makes
you smarter and that is what we are trying to do. In the Michigan
case people are challenging like your person said in the introduction
they have won and they’ve lost and now the Supreme Court
is going to make the decision. On April 1st when
we went up to Washington, D.C. and we had all that support
up there showing that we’ve had more people supporting
Michigan than I’ve ever seen in my whole entire life
because this country values diversity but it is that quota,
that quota thing, that my friends over here on the conservative
side, they like to throw out there. That will kind of muddy
the water a little bit from that standpoint.
Brown:
Mr. Robinson, I’m going to get back to you, but
Professor Daye, I need to ask you why did UNC file a brief
in this University of Michigan case? What was compelling about
the case?
Daye:
Well that is exactly right. The question is not whether
there is discrimination. The question is whether the grounds
that you are using to make distinctions are acceptable. And
the Court has said because of our sorry history of race relations
and discrimination in this country when you deal with the
racial classifications you have to meet the most exacting
scrutiny. That’s only because of a history of slavery,
Jim Crow, discrimination right down until today. So because
of that the Court said if you use racial classifications you
have to reach a high standard. It didn’t have to do
be that way that is another topic. So then, the question is
are you advancing a compelling state interest in what you
are doing and is what you are doing narrowly tailored to accomplish
that end? The argument made in the law school brief is that
we have two grounds—one is a quality, high quality,
first class education. The other is to train future leaders
to lead our state in a state that is increasingly, demographically,
racially diverse. We say that is a compelling interest.
Brown:
Okay. Mr. Robinson would you agree that that’s a
compelling interest—what Professor Daye just described?
Robinson:
No. It is not a compelling state interest and that is
the position that unfortunately the Bush administration watered-down
but that was the position that the solicitor general sent
the brief of. But I want to get back to what my colleague
said about… That again the only difference between the
hoodoo process that does not assign the points and the process
that puts the explicit points in there is that the folks with
the points got caught and are going to lose. The interest
is the same. They want to have a certain makeup of their law
school class based on race. Diversity is great but overwhelmingly
the left in this country wants different colors and different
ethnic backgrounds that believe the same views. They are not
interested in intellectual diversity on campuses and as a
matter of fact they suppress those views by stealing the newspapers,
by shouting down the speakers, etc. They are not interested
in real diversity—diversity of thought. I think they
are interested in…
Daye:
Mr. Robinson is off point.
Brown:
Well, let me ask this.
Robinson:
Same views, different colors but you cannot do what they are
doing in Michigan. It is going to be struck down and again
the difference between the guys who assign points and the
folks who do a Kabuki dance and come up with the same agenda
which is unconstitutional racial discrimination, is just that
the guys with the points got caught.
Daye:
Mr. Vernon is on the right side of the right wing because
even the Bush administration conceded that attempting to achieve
diversity was a compelling interest.
Williams:
Yes.
Daye:
The only difference that they had was they wanted to do
it by subterfuge and indirection. They said, “You should
have… Get the top 10 students out of every school and
blah, blah, blah.” The foundation of that is that those
schools are going to be racially identifiable because of segregation
in the secondary school system. It absolutely won’t
work for a law school. We have 200 seats and there are thousands
of undergraduate schools so we couldn’t ever go to any
kind of 10% plan. In any event, it is a subterfuge because
if you didn’t know that those schools are racially identifiable
you wouldn’t have any way of thinking that using school
basis would produce any diversity—at least not by race.
Brown:
Let me ask you a question, Mr. Robinson. You said that
your colleagues are more interested in racial diversity as
opposed to intellectual diversity. Are you saying that if
you have racial diversity then you assumedly don’t have
intellectual diversity?
Robinson:
Well, no. What my point was is that we need affirmative
action in this country but we need affirmative action for
conservatives, conservatives on the law school faculty, conservatives
on the UNC’s faculty. It is unfortunate that the college
Republicans at Wake Forest had to go to the med school to
find a professor who would admit to being a Republican.
Williams:
In this country there has never been a law that prohibited
the educating of conservatives but North Carolina had a law
prohibiting the education of blacks. There has never been
a law at the University of North Carolina that prohibited
the admission of conservatives. [ROBINSON TRYING TO INTERJECT]
Robinson:
And right now the public school system is not doing a
very good job of educating black folks and a bunch of other
folks.
[OVERLAPPING
CONVERSATIONS]
Brown:
Mr. Robinson, we only have a little bit of time. I need
to get Mr. Williams in. Last word.
Williams:
I want to just share with Mr. Robinson that race matters
in this country, believe it or not. Cornel West wrote a book,
Race Matters. Web Dubois stated that the problem of
the 20th century is the problem of the color line.
We’re still dealing with that in our society. We cannot
overlook that race matters in our country.
Daye:
Because there is discrimination in housing, discrimination
on jobs, discrimination on loans, discrimination when you
go to shop at the department store…
Robinson:
Are we actually going to get to the real problem facing
the African American people as opposed to racial discrimination?
Brown:
What is that, quickly?
Robinson:
Illegitimacy. Seventy percent of black children born in
houses with… In single parent homes.
Daye:
So we should exclude them from school then, I’m
assuming?
Robinson:
Race… The fact that the public school system has
collapsed. The outcomes of not having fathers in those homes
having to do with crime, homicides of young black men etc.
Brown:
Okay.
Robinson:
And the fact that my colleagues want to talk about slavery
all they want. The reality is that in 1940 or 1950, black
homes and black families were unified. Unless we deal with
the real problem, illegitimacy, it doesn’t matter how
many folks you want to admit to the law school. But again,
my colleague did state the Bush position correctly and I admire
council Gonzalez doing a great job…
Brown:
Mr. Robinson, I’m sorry, I’ve got to cut you
off because we’ve kind of gotten off base and we are
actually out of time, unfortunately, but I’d like to
thank Vernon Robinson, Dr. Harry Williams and Professor Charles
Daye for their expertise and passion on this heated debate
on tonight’s program. If you’d like to learn more
about the work of our guests or the debate surrounding affirmative
action please visit the Black Issues Forum website
at www.unctv.org/bif.
We would also like to hear your feedback and suggestions so
send us an email or you can call the BIF line at (919)-549-7167.
Be sure to join Black Issues Forum each Friday night
at 9:30 p.m. I’m Natalie Bullock-Brown reminding you
to always be encouraged no matter what. Have a good night.
[THEME
MUSIC]
Voiceover:
This program was made possible by contributions to UNC-TV
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