tv Landmark Cases Regents of the University of California v. Bakke CSPAN May 14, 2018 9:00pm-10:32pm EDT
of the university of california. a u.s. supreme court case on affirmative action. that is live next on c-span. >> inside that car is alan bakke, returning to his home in los altos tonight, after winning his bike to enter medical school. think it is a reflection of what life is like in the united states. under gerald ford and under an american society that said, these people can sit theater,s in the movie they can register to vote, why are they happy with that? -- why aren't they happy with that? >> a majority of americans can support this. >> affirmative action has been
enhanced, which is what i told the president. 5-4?at did you lose, 8-1? 7-0? you have lost a great decision. ♪ "landmark cases," c-span's special history series, produced in partnership with the national exploringon center, the human stories and constitutional dramas behind 12 the stork supreme court decisions. >> mr. chief justice and may it please the court -- >> welcome to landmark cases. tonight, affirmative action to the supreme court issued this decision on this issue in the ba kke case. actions affirmative
program was declared unconstitutional. the court and the country wrangled for decades over affirmative action. our guests tonight understand the history of this case. both of them teach at georgetown law, but with very different legal philosophies. argued 37 cases in the court overall. he clerked for justice breyer. barnett is the director of the georgetown center for the constitution. he argued an important case isore the supreme court and the author of "a republican institution," published 2016. in that opening, the historic newscast with dan rather, we
heard affirmative action, both this execution and value for a society, two very different use -- views. what do you think, randy? randy: this basically set the agenda we live in today. all the talk we have heard about diversity, inryone were has grown up the last 30 or 40 years has heard about diversity. it never ends. diversity comes from this case, opinion, it became the rationale that allowed racial preferences to be used. susan: neil? all, it is a joy to be here. i agree with you entirely, randy. i am not going to be saying that all night, but bakke put the terms for affirmative action front and center.
the debates we have had ever since our microcosms are what we saw in the clips. usan: this is a 14th amendment case, which says, no state shall make or enforce any law which shall abridge the what aspect of bakke makes it a 14th amendment case? >> it is considered to be equal protection. the allegation made by bakke was that he was denied equal protection by the uc davis medical school, because he was the allegationexcluded from uc l school on account of his race. that made it an equal protection case under the cases that had
>> i was a law student. my dear friends introduced me as a graduate of princeton who had come from the south bronx and was doing whatever i was doing at the time. everyone got introduced. the partner sitting across from me looks at me and says, did you get into yale because of affirmative action? he hadn't seen my resume, yet. [laughter] i looked at him and said, it might have helped, but i also think graduating summa come loudly, phi beta kappa of princeton with its highest academic honors had a little bit to do with it, too. he was one of our leading
lights on the judiciary, but he made mistakes, and he was roundly criticized for what he not in that oral argument, just because it was factually wrong, but because it misstated the true rationale for affirmative action. in the university of california vs. bakke case, the rationale for affirmative action has survived. it has become that way all over the country. we are trying to bet -- benefit everyone with experiences in and outside the classroom. that that's rationale conservative funded litigation has tried to knock out for years and have never really done a particularly good job. y: it was not justice scalia's finest moment in how he articulated that. he tried to articulate the mismatch theory, people need to
be admitted to schools they are more qualified for, because they will do better and graduate more frequently and it will be beneficial to everyone. sotomayorthe justice excerpt was kind of interesting. it suggested she was a little sensitive about being being anized about affirmative action admittance. she didn't deny it, but she wanted to a farm that was not the major reason. why not? there is a potential stigma attached to all minorities, because some minorities are admitted under affirmative action programs that some will then say means they are less qualified. i thought she exhibited sensitivity on that subject. athletes, when they are condemned, because you got in because you play ball, or legacy
talkingns, what we are about here, federal courts saying it is unconstitutional for universities to do this, even if you deeply believe it, we are taking it off the table. that is a policy debate that should be have -- should be had. but the idea this makes it unconstitutional is very tough. randy: i agree. i think neal and i will be agreeing about a lot.that goes with the theory, going to whether the policy is a good policy or not. or mayor been -- it may not be relevant to whether the policy is constitutional. we need to keep these issues straight. susan: one of the aspects of this that makes it so interesting are your questions.
we will be going to calls in 10 minutes or so. you can also send us a tweet. please use the hashtag, #landmarkcases. we will mix your tweets into the conversation. definition ofe affirmative action. will learn more about the policy definitions. the first time we heard reference to it was in 1961. president kennedy required affirmative action from government contractors to hire minorities. what happened in the 1960's and with theward, government interest in giving people a leg up because of their
gender or race? randy: i am old enough to remember that affirmative action differentwhat connotation when first introduced into popular discourse. it was first about recruiting people who had been previously excluded. we tend to admit people that are like ourselves. we tend to talk to these same people and recruit from the same places. if we want to have an integrated society, we should affirmatively go out and identify quality -- qualified people, and make an effort to recruit and hire them. the affirmative action parts meant that, it didn't necessarily mean preferential treatment or different standards. for better or for worse, that came to me later on. lies youortant to be
can engage in affirmative action without engaging preferences -- to realize you can engage in affirmative action without engaging preferences. neal chaired the committee that hired me at georgetown. it took affirmative action on his part to recruit me and get me into the faculty, and i will always be grateful. i would count that as affirmative action on his part. it is not to say that preferences are excluded as part of the package, only that affirmative action should not be limited to preferences. 1974 involvedin the university of washington law school. what happened there? case went away because of the change in circumstances. year,pened to me this when i was bringing it into the supreme court the second time around, president trump changed the travel ban a couple weeks before the oral argument.
the solicitor general had it suggested the case had basically gone away, which changed my circumstances. 1974, thehis case in court says there is a change in circumstance. the person had graduated, and the cases, way, -- the case has gone away. one of the fundamental lessons about the u.s. supreme court, they don't almost ever have to do anything. they do a lot by doing very little. isiding not to do something leaving the democratic conversation to unfold. this was a very rapid time of change happening in the supreme court, were just two decades before, you had brown v. board of education, which defines what the warren court is all about. off the court,me replaced by chief justice burger.
president nexen nominates four justices to the supreme court in the first three years of his term. have change in the way the court does composition -- by 1974, you have change in the way the court does composition. the court will not sometimes get into a hot button issue until they have to. the bakke case was going on in the california supreme port system. other cases were unfolding of the lower court. that is common. susan: other cases you will be hearing about. in medical school was opened at uc davis in 1968. by the time the bakke case came
around, 16% of the seats had been set aside for special committee admissions. was 35 years old, a former marine corps officer and engineer who decided his calling was medicine. he applied to other medical schools, but was rejected because of his age. what should people know about justice powell? randy: he was a man of the south, something that rankled justice thurgood marshall during the deliberations on this particular case. anding him to come around essentially be the deciding vote on this case was a major accomplishment for the advocates of affirmative action. susan: another member of this cast tonight, justice thurgood marshall. will can you tell me about him? neal: probably the most legendary lawyer in 200 years.
created a litigation strategy that led to brown v. board of education. became our first african-american solicitor general. he was a judge on the second circuit court of appeals in new york. he was an african-american justice on the supreme court and a legendary hero and figure. susan: we visited the library of congress and their archives on legal matters. ryan shows us a letter written to the naacp from justice marshall. [video clip] what we happy or is a collection of documents from a variety of personal papers and organizational records pertaining to thurgood marshall. this letter, written by thurgood marshall, to the special assistant to the naacp to of the naacp. the reason for this letter was to draw attention to the victory rson, a state pea
of appeals of maryland case, in which murray had applied to a mission -- admission to maryland law school and had been denied, justice marshall was denied three years earlier. groundwork was late for a new approach to desegregation, statute by statute. law school was one needs to do that. -- was one means to do that. by working with pearson, marshall hoped to show the strategy for desegregation would be effective. earson is already working for the naacp. this is a means to draw him in
later. he becomes a central actor in these efforts. susan: his own experienced background and the case in which he is involved with all come to bear. let's talk more about alan bakke's applications to medical school. 500 in -- 468 out of admissions. gpa>undergraduate 1974, and in 1973 and was rejected both times. the second rejection was what started the legal challenge. i want to ask about the age factor. he could've pursued this on the basis of age discrimination. was before age was considered any suspect classification that could be challenged, or any civil rights laws on the basis of age discrimination. he was told by another law --
another medical school he agerviewed with that his made it an upheld struggle for him to get admitted. -- uphill struggle for him to get admitted. he completed engineering sc hool. theid a combat tour in marines before he decided he wanted to do medicine. you would think with all that going for him that medical schools would welcome him, but it wasn't only uc davis. all the medical schools he applied to did not welcome him. i think he thought, and he was right, that aged had a lot to do with it -- age had a lot to do with it. made ahe university conscious decision not to go after bakke in any way. the california supreme court said, maybe he would have gotten him admitted, but the
university conceded he would gotten in but for this affirmative action program. e was very struck by the ton the university took toward him at every time -- at every turn. bakke did not use this platform to create a cause for himself. the limelight during the litigation and everyday sense. that is not something we see nowadays, where everyone wants to be famous. susan: the first little challenge wasegal dillow county superior
court. the judge there found this program in title -- in violation bakke's vi and that admission needed to be reconsidered. both parties ended up appealing. explained how that happened. neal: he has talked about his affirmative action constitution ader the 14th amendment, but federal statute prohibits discrimination in universities that accept federal funding. sometimes some of these court decisions talk about that constitution.he what happened here was something very unusual. the university said, this is so important to us.
we don't want to go to california intermediate court, the court of appeals in california. california supreme court, let's take this case. there are similar ways to do that in the federal court system. but in cases of extraordinary importance, this issue could be heard right away. that is what the california supreme court did. 6-1 decision in favor of bakke. randy: right. it fast couldn't do enough before the person graduated and they knew the supreme court was prepared to hear a case like this. they said, let's get a move on. susan: the headline from that supreme court decision in california, but then the school continued to pursue it. this was how important the policy was.
jump from the california supreme court to the u.s. supreme court. option, dohave the we ask the united states supreme court to. -- to hear it? says,rily, the court california court, you know california law, we don't -- or any other state. but the california supreme court decided a federal issue. so the university was able to say, supreme court, hear our case. you have to file a petition for a writ of searcher are right -- supreme court, and asking you to hear my case. there are 9000 requests every year and the supreme court request about 65 of them -- gra nts about 65 of them.
this is what the university did. hey filed a petition to say, ar our case. that reallypetition sums up what we think of bakke. we think of him as the diversity rationale, people learning from each other. page, you arest asking the supreme court to answer a question. the question they said -- when only a small fraction of thousands of applicants can be admitted, does the university of protection clause of entity faculty from voluntary seeking ofcounteract the effects generations of pervasive discrimination against minorities by establishing a special admissions program that
increases opportunities for well qualified members of racial minorities? can we have a affirmative action to remedy the societal effects of past discrimination? we are making up for abuses at some earlier point in time. that is not affirmative action after bakke. afterward it was, we are not trying to make something up, but improve diversity in and out of the classroom. susan: let's go to the phone calls. first is glenn in michigan. glenn: thank you. i have a couple of questions. one is about the state of affirmative action programs. here in michigan and california, this led the way for a number of states to do this. was there --
eradication of race and gender preferences that passed overwhelmingly and became the subject of a lawsuit that went all the way to the supreme court. a ban oncided in 2014, race and gender preferences and that kind of stuff was developed. the initiative we passed was upheld by a 6-2 vote. justice sotomayor and ginsburg were the only ones that voted against it. said, affirmative action was constitutional, but not a right. some argued it is. students have changed affirmative -- have chanted, affirmative action is the right, and that kind of thing. would you say there is any legitimacy to the argument,
affirmative action is a right? my second question is about affirmative action on the federal level. i remember there was a presidential candidate called bill graham a number of years ago. one of his big campaign lines, the first thing he would do after he takes his hand off the bible when he becomes president was to sign away affirmative action as a law. would it be that easy for trump? thank you. neal: let me start with your first question. i was involved in that michigan case you were talking about. i thought your question was great. it summarized exactly the issue. in michigan and california state referendums that ban affirmative action in the university. gets came in and said, we have a
concert -- the plaintiffs came in and said, we have a constitutional right. to a big believer in affirmative action -- i am a big believer in affirmative action, but i thought that was a ridiculous argument. once you have and affirmative action as an embedded right you can take away even when there is a need for it, any number of things can change. lititgated,as archibald cox said, i am not here to say affirmative action is constitutionally compelled. to say the university decides with its leadership to have affirmative action. than it is within their constitutional right to do so. but it is also within their constitutional right not to ha ve the program.
randy: i don't have that much to add. susan: how about his second question? randy: neal can tell us more about how restrictive executive actions can be. they seemed pretty unrestricted under the last administration, now we are finding out, there are restrictions on what a president can do we didn't hear about before. i would be interested in hearing what neal thinks. obama'sthink president executive actions were challenged every day. it is not like over challenging executive power is a new thing. i think the president would have latitude to get rid of affirmative action. there are many statutes that require it. it is a voluntary decision by one president to have affirmative action, i suspect
there will be ways for a future president to get rid of it. the rule be certain government -- there will be certain government contracts. randy: the question is, does the statute gives the president the discretion, when he is issuing an affirmative executive order? 50 statute doesn't, that is completely different. doesn't, ittatute is a different situation. susan: up next. caller: thank you for the series. -- because i think we would've and all-male police and fire departments without it. two opponents have been adamantly opposed to affirmative
action. has president trump got one affirmativeding action at all? >> not that i know of. >> not with. -- not that i know it. susan: thank you. next caller. color: this is my first call, thank you very much. i want to share some personal experience. my wife is a physician. she is from queens. not from the bronx like sotomayor, but she is latina. perspective, affirmative action has the possibility for many minorities to become well-off. becameyou that my wife an obstetrician after going from queens in 1975 to a medical
program. three-year she came in 1978 and went back. where sheo a hospital trained as an ob/gyn. we had three children. our first kid decided to become a doctor. before doing so, he went into ae army and he happened to be bronze honor veteran. right now, because of my bike becoming that -- my wife becoming that dr., that really that if he wasn going -- to go to war and fight for america. he came home, went to university. the missions program, and finished medical school. he is a psychiatrist at the air
force academy in denver, colorado. does contribute to the better minutes the community -- the betterment of the community. i wanted to share that with you. susan: thank you for calling it and sharing your story. >> i love your family. andat is off to your wife son. the question is great because it picks up on what happened with the oral argument. the university of california lawyer, archibald cox, he began the argument with facts. "there is no racially blind method of selection that will allow more than that will allow more than a trickle of minority students into the nation's college professions." he said without affirmative
action we would have almost no one. then he said, it is possible for a black to go to the university of minnesota or harvard or yale once they see affirmative action. it is this idea of role models. when you seem minorities that are successful, then you might be likely to enter professions you thought work closed. >> what is interesting, all of these benefits, i do not know thiswe can be sure that scholars family really was benefited by affirmative action. they might have been admitted anyway, like sotomayor. that these are all relevant to the bakke case. toe of the justices wanted decide this case on that. thurgood marshall, first amendment, wanted to do that.
dore were not five votes to that. there were only four votes eventually to do that. the fifth vote was diversity. none of those justifications are the constitutionally accepted justifications for affirmative action. completelyt unmentioned in the opinion, but -- does the school have an interest in having a diverse body in order to enhance its educational program? that is where the discussion has come from. the narrow justice powell opinion, which for a long time was only justice powell's opinion, now represents the court. lived in 1978 and i had even then a 99th percentile on the college admissions test. in 1985, i took the test again
and scored 99.9% percentile in andics and 99.8% in biology mathematics and life subjects. how did the case get to the u.s. supreme court when he was going it wasdversely affect -- going to so adversely affect deserving students throughout the nation. i have served in the air force, national guard. i did my best. i had friends in every possible race in the nation. we were all treated equally, but when it came to test scoring -- if you had the money to pay for kaplan test centers you could raise your scores to the 99th percentile across the board. i would've done it if i had the money. but i was happy with one 99.9
percentile in physics. i would not have gotten beyond that if it were not for bakke case.g when he did in the it was enough to affect all of the undergraduates who wanted to apply to medical school. susan: how did it affect them? >> how did it affect him? caller: i went to medical school, pueblo medical school which was very nice of them. and i could not be a communist and that was required at the time. like i said, many of my close and cousins had fought for the united states. they served in the united states military. susan: thank you. i'm not sure if we can process anything there to understand the case better. let me move on. thank you or your call in having lived through that time and actually applied to medical school. here is what the court looked
like in 1978. the newest justice was a court appointee. nixon appointee for chief justice warren burger. earlier, johnson appointee thurgood marshall. a kennedy appointee. to eisenhower appointees. this was the ninth year with warren burger as the chief justice. his there anything notable about the burger court in terms of its decisions involving minorities? >> president nixon had made a number of appointees. politicalt, the valence of the court substantially changed from the warren court which was what we might call a progressive court. it changed to a more conservative court, but a court that was not rigidly
conservative. it was just a pullback from the warren court. it was actually quite significant. we would associate the position of the four justices who were aligned with justice marshall in this case. the warren court would've been expected to do that, but because we are now in the burger court that is not what we get. we also don't get a complete abandonment of affirmative action. we get the middle ground that justice powell represented. that characteristic of the middle ground is what you also got from the burger court. oneou can't just study case, bakke, and say that's it. now we can your doubt by reading the briefs. you have to think, what was the court taking at the time. the year before this, the court
decided something momentous in roe versus wade. people took to the streets. on one side of that scale. is it any surprise they don't want to jump into affirmative action? four years have passed. is defined in the public eye by abortion and a strong decision. it is not surprising that court lands where they do with the middle-of-the-road compromise position. it is not about making up for societal discrimination or role models or anything like that. it is a much narrower rationale. susan: you already told us about
.ranting certs the university of california filed in december 19 76. we will return to the library of congress for an interesting courtairs look at how the worked. this is a vote sheet from the harry blackmun papers about how they managed to get enough votes to move the case forward. thehis document is from harry blackmun papers. this does a couple things. it tells you when the case was argued. when it was voted on. yet, when it was announced. when you want a case to be heard, you have to file this memo. it is often heard by clerks who pass it on to the justice who votes yes or no. fore is a 5-4 split certification. the liberal justices, particularly brennan and
marshall were worried that a negative decision whatnot align with the jurisprudence they just.ed were correct and they thought it would diminish civil rights policies and undermine the main worry that yes, you pass laws but you have not gotten that the underlying infrastructure that created them. justices wereve more concerned with kind of the liberty issue. they are ready to hear this case because it does a lot with the jurisprudence they believe. it was three times the court considered before they had enough votes to grant the case and move forward. are you familiar with that? >> absolutely. a litigant before the court,
you are trying to understand the process as best you can from the outside. what is interesting is normally, the people who grant a vote to grant to hear case are the decision inhink the the court below was wrong. here, the decision was in favor whoakke but the people voted according to the tally sheets were people who thought the decision was right. so it was the liberals on the court who were asking -- acting defensively. it, the lawou hear in california might be the law nationwide. it was interesting. the courts will often re-list thing at another conference. it will come up for re-discussion week after week. notice almost a rule that says,
you have to relist. they won't just decide on day one. susan: civil rights organizations were petitioning and urging the court not to take up the case for the very same reason. they were afraid the outcome would be affirmative action across the land. how influenced are they by outside sources? >> i do not think it is right to think of the court as political. once you've been on the court, this is true for justices appointed by republican and democratic presidents, they are justices. they will vote against the president. rehnquist was put on the court by nixon but voted against rehnquist -- against nixon. examples.all sorts of breyer voting against clinton in the politicians case and so on.
that they do think into a- should we get case? is the country ready for that decision? have all of the issues been properly ventilated and the lower courts? >> it takes for votes to grant tot but it takes five votes win a case. so the four justices, they would have to be able to count it at five or they won't be able to vote for cert. i think the problem is they had a hard time figuring out how they would get to five and therefore they did not want to hear the case. the same thing happened with the second amendment right to keep and bear arms. the nra did not want to gaze to the court because they were not sure they can get an outcome they wanted. they did not want to have a bad outcome that would then be national. so they try to undercut challenges, including the heller
case as best they could. it was an independent group associated with the cato institute and other libertarians who brought that suit over the objection of the nra, who actually tried to subvert it. they were afraid of a national rolling that went then be a bad rolling. a they were afraid of national ruling. susan: is race-based affirmative action constitutional? is the university of california's quota base affirmative action constitutional? let's hear archibald cox's arguments. there were two hours of arguments. a little bit longer than the usual. are they now longer? crack sometimes they will expand an argument in major cases.
-- >> sometimes they will expand an argument in major cases. this was a particularly important one. >> archibald cox was a famous harvard law professor. after he retired, he joined the faculty as emeritus. his office was next to mine. he was very well-known. he was best-known to the general public for having been the special prosecutor who was appointed to investigate watergate and eventually was fired when president nixon was opposing cox's use of a subpoena to try to get the famous watergate tapes that nixon himself had made. he was eventually replaced by leon jaworski. that made archibald cox, who was that time is somewhat obscure harvard law professor, a
household name. >> and he might become a household name again. susan: we're going to listen in. >> the objective that impresses itself on my mind, partly popuse of the testimony in -- in partly because i am an educator. an educator is the importance of including young men and women in both undergraduate colleges and medical schools, so that other younger boys and girls may say yes, it is possible to go through that university of minnesota or to go to harvard or yale. this is essential if we are ever going to give true equality in an effectual sense to people. because the existence or nonexistence of opportunity, surely we all know, shapes people's aspirations when they
are very young. >> what if davis medical school had decided since the population of doctors in the minority population was so small, instead 60 seats theyde would set aside 50 seats until that balance was adjusted and the minority population of theors equaled that of population as all whole. would that be anymore in firm van the program that david says? -- would that be any more in firm then the program that davis has? --i think my answer is this there is no reason to condemn a program because of the particular number chosen. think he was thinking about his answer when he said that.
>> i listened to the whole argument in preparation for the show and i was struck by how the justices let him talk without interruption for great expanses of time. verytreated him differentially is supposed to his opponents who is actually peppered very heavily with questions. you heard that long excerpt. you do not hear that much anymore. at the beginning or the end of an argument even. you don't hear any contested case get that much time to speak. >> the reason why that is is not about affirmative action. it is about one guy we're talking about earlier, anthony scalia. you can listen to any case you want to, after justice scalia court, everything is
different. before that, you could go up with a speech. now i go up with like one line on a legal pad and hope to get that in. you heard then-justice rehnquist ask that question. rehnquist was a phenomenal questioner. that question to proviso a lot of supreme court argument, which is the justices are trying to say -- i have read your brief but how far does the logic of your position extent? so they come up with hypotheticals. does your argument still hold? what if? what are the logical limits to your question? that is what supreme court advocacy is all about. reading that speech because at some point he skipped a line and had to -- >> cox was reading that speech. i know because at some point, he
skipped a line and had to go back. someone arguing the bakke case. from san francisco. it is the only casey argued before the supreme court. >> so use of racial classifications is unconstitutional? cards we believe it is unconstitutional. is limited to 16, but because the concept of race itself as a classification becomes, in our history and in our understanding, and unjust basis upon which to judge people. we do not believe that intelligence, that achievement, that ability are measured by skin pigmentation or by the last surname of an individual whether is in spanish. >> do you mean, as to the 16 places, the allocation was dominantly by race?
>> there is no question that the 16 places was dominated by race. i have to go back to the record to reach that point. there were no non-minority people who were ever admitted to the special admissions program. i do not mean that was for the lack of trying. ?usan: what do you hear >> it is always tough in the supreme court if it is your first time. i am joined by a person on this panel who in his first argument did a magnificent job. everyone should listen to it. it is a rare thing to pull it off your first time. argument dide, the not go as he helped it would there. i do not think it was the
argument at the end of the day as he chose. through the litigation, the strategy of bakke was to say -- this is the quota. there are 16 slots no one else can get except minorities. that was a powerful argument. that was probably the best part you justgument, that heard. susan: there is also an argument from the solicitor general who also happen to be african-american. theas on part of administration because of the national interest in the case. if you look at the brief in the archives, it had lots of input from members of the carter administration as they prepared for the court. we will take another call. caller: thank you. we just discussed this in my
high school african-american studies class today. my question has to do with the diversity rationale. as ahe diversity accepted rationale only race or could it be gender or political? and has there been any meaningful research as to whether it actually gives superior outcomes? whetherissue here was for some reason -- everyone agrees that with admission to higher education, diversity is important. everyone always agrees to that. although diversity to begin with was a way of excluding jews from the ivy league schools because too many jews were getting in on merits of they went or geographical diversity in order to get some more iowa people in were not jewish. but the issue is, whether race is taken off the table such that
alan bakke was discriminated against because of his race. so the issue is, is race a no-no. not if other things could be used as a plus. did not emphasize diversity at all. you have to go to page 54 of the brief before they mention diversity and that it is not even a full sentence. but nonetheless, diversity became the rationale for the controlling of opinion by justice powell. justice powell said, no it cannot just be racial or ethnic diversity. you have to consider diversity through a whole different or writing. political, geographic, social economic. it cannot just be made up of race and think that will be sufficient. >> he starts his argument off by saying, i represent this man. he wants to get into medical
school. he got into medical school. he said, quotas are bad and off the table. he won that point, too. as ineffective as people thought he was as an advocate, he got the two things he was looking for. from: our next caller is nevada. we will move on to adrien from the bronx. you are on. caller: i am interested to find out, i understand why bakke was contesting but why was not the point made about age discrimination? he was rejected because of his age they had intended. so i was wondering why appoint was not made for age discrimination. >> age discrimination at this point in history had not read considered either a
constitutionally permission basis of a challenge or a statutorily permissible basis. it was not until the age discovery nation was passed him i figure was under the first bush, that this became a remedy under u.s. law. onan: philadelphia, you are the air. hello? on.ill move when we call you, i know you are listening to the screen but be ready to go with your question, please. we will go to the next part, getting to a majority. we will turn to the library of congress line graph showing justice powell's of a call to getting to a majority. >> this is from our william brennan papers. he was seen as justice marshall's kind of a lie. this is from a memo written to his clerks for typing up later,
in which he discusses the various deliberations and the fact that marshall was particularly offended by lewis powell's draft opinion, from marshall's point of view. thehey failed to look at larger inequalities. passingou are doing is those laws, you are reapplying or reasserting the same kind of structural inequalities that have negative african-american progress. for justice powell, if you turn to the letter he wrote one day before they announced his opinion, this letter is an attempt to try to cobble moreher one or two opinions. i think he knows it is unlikely to work out at this 11th hour as he is putting up this memo. he ends the memo "i should be in upfront."ank, not
ironically, powells opinion despite the fact it had no other justices on it, is the one that susan: we are going to look at how that decision turned out, it was split on the two. constitutional was the majority of justices. on the question of whether or not the uc davis program was constitutional, yes or no, powell, berger, stewart, rehnquist, stevens. it was a very complicated outcome. i want to go through this because time is getting short. we will hear some excerpts and talk about what it means. on question one, is race-based -- constitutional?
thecourt affirms constitutional power of federal and state government to act affirmatively to achieve equal opportunity for all. government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice. here is stevens' dissent. it is therefore perfectly clear the question whether race can never be used as a factor in admissions decision -- discussion of that issue is inappropriate, the meaning of the title vi ban on exclusion is crystal clear: race cannot be the basis of excluding anyone from a federally funded program. let's talk about the opinions on that question. what should people take away from that? issues, thee two principal was the constitutional issue, but the statutory one, as well.
there were four justices who would have preferred to decide on statutory grounds, title vi grounds, rather than constitutional. there were questions whether they could even assert under title vi. i think it was stewart it bothered the most. as you say, the court -- justice powell siding with the four more liberal justices did reach the question and affirmative action was upheld, but it was upheld in a way we have to avoid quotas, whatever that might be. that is what we have been engaged in ever since then. when is something a quota and when it it -- is it a goal? it is this case that has put us in this situation. >> there are nine justices on the court.
at the end of an oral argument, a day or two later, the nine will meet in a conference room. the tablego around and say how they tentatively vote on the case. ordinarily it is a decision, some people in the majority and some in the dissent. sometimes unanimous in which they all agree. but sometimes with a nine-member body, weird things happen. four say it violates the statute, four say it is totally cool, one says it is only kind of cool. opinionat one justice's that controls the court because it is the narrowest grounds of decision on which a majority agrees. ise, this narrow rationale justice powell. got one vote, but boy, it was an influential vote.
it takes off. justice scalia did a, justice rehnquist did it on federalism issues in the 1970's. spoke toomething that the lived experience in universities and administrators picked up on that and understood it. randy: there is one twist, justice blackmun was having prostate surgery. they did not know how this case would come out until he got back. even in the beginning he did not want to give an opinion. finally, the chief justice had to go into his chambers and say, are you ready to tell us how you would vote? he said, not yet. to the surprise of some members of the court, he did side with the liberal side of the court. susan: the second question about university of california's
quota-based affirmative action, finding it was not constitutional. from then excerpt majority opinion in question two. the special administration program is based on race and ethnic that ground. equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. if both are not accorded the same protection, then it is not equal. and from justice marshall's dissent, he says it is more than a little ironic that after roes,imination against neg the court is unwilling to hold that a class-based remedy for that discrimination is permissible. randy: this remedial view does not command the majority of the court, despite justice marshall's passion. as a result, justice powell's
decision, which says no quotas, but you can look at the whole person and allow every person to commit -- compete for every slot. what was wrong with the university of california system, it holds people, 16 out of 100 slots, you cannot even apply if you are caucasian. that is what justice powell said was wrong. and i think that is where the country was and is today. justice powell's views that separate the court today. you have justice marshall and the liberals today on the court tuesday, what is banned by the 14th amendment is invidious discrimination. discrimination aimed at demeaning, some ordinate in one group of people. what is not banned --
subordinating one group of people. on the other side of the court, inthe view that race classifications other than to remedy violations by the party before the court, the use of it should insidious simply not be used as a classification at all. even if you think you are using be.enignly, you may not that is the divide that separated the court then and i think it separate the court today. susan: here is a comment on twitter. whoperates against those suffered past harms and abuses, it is intended as a remedy in the reconstruction amendments. let's see what students in the university community, how they
are reacting. >> i consider it a victory. not just for the university of california, but for social justice and higher education. >> but others disagree. several minority students at the school call it a slap in the face, saying the struggle for equal rights was being undermined. took hundreds of years to build a house and someone burned that house down, how would you feel about it? >> another med student said he felt pretty good. >> i am pleased. they have questionable criteria involved. preventingicitly some from applying to the program. susan: we will look at what some of the nationals are reporting on it. when thees times,
justices uphold affirmative action. were people on the edge of their seats waiting for this decision to come out? was it seen as important at its time? >> it was one of the big hot button issues. i think it was bigger than roe v. wade. abortion became a huge political button issue after. it did not build up to that decision. this is an issue teed up. they were ready for a big decision, they were disappointed, now they were going to get it. it was a subject of huge controversy. the most publicly debated and protested outside the supreme court decision that had happened up until that point. susan: our final segment, the legacy of the case. i will go to iowa. josh, i think we have had you with us throughout the whole series.
great to have you in the audience. what is your question? >> thank you. my question tonight is about thurgood marshall and how influential he was in this decision and on the supreme court in general? >> on this decision he lost. the remedial, long view of affirmative action did not prevail. as a justiceall was maybe not as successful as the others. there are reasons why that could be. president nixon had so many appointments, as did resident reagan. -- president reagan. his legacy as a justice was not quite the legacy of a litigator, which is an unfair standard. in the greatest litigator
united states history, at least the second greatest litigator. >> it was justice brennan who did the politicking. it took a lot of work on justice brennan's part to get the four vote block. he did that in part for thurgood. justice marshall's influence was felt as well. susan: michael in san diego you are on the air. caller: i was a student at ucsd for975, medical training the u.s. navy. i was overseas. for this country and when i came back i wanted to pursue medicine as a career -- i for this- i fought country and when i came back i wanted to pursue medicine as a career. i will be retiring from the school district.
i will go ahead and practice 1972-1973, because i was denied my right to go to medical school. what has transpired today that would not happen to the iraqi and afghanistan veterans? what would be different today? love the question because it does highlight the passion and the stakes in this. it highlights why the bakke decision was so powerful. it is said to people like this brave caller that has called in, we are not going to have quotas anymore. we could have a veterans provinces in any number of preferences, where you come from, but we will never tell you justyou are not eligible because of the color of your skin.
it was for that reason it was a widely celebrated decision. the wall street journal called it the decision where everybody won. said ityork times pleased a broad spectrum of people on both sides of the issue. justiceit was a needle powell threaded for the court. susan: let's go on to what happened to allan bakke. we will play a clip that answers part of that? . >> -- we will play a clip that answers part of that question. >> we spoke about the decision and his penchant for privacy. >> i am pleased with the decision and that is the only thing i will comment. >> why haven't you spoke out before? >> i like to keep my private life private. >> it is not a private matter
when it goes to the u.s. supreme court. >> my own personal life is private and i intend to keep it that way. >> do you intend to go to medical school? >> i do plan to go in the fall. >> an update from the university of california davis. 97 medical students graduated from there today, including allan bakke, who challenge the racial system. ultimately the supreme court ruled in his favor. services residency at the mayo clinic in july. susan: he did a residency and fellowship at the mayo clinic. worked for many years as an anesthesiologist in minnesota, retired a decade ago, and moved on to medical devices as a business venture.
his hesitancy to talk continues to this day. we worked very hard for him to give us one interview about what it is like to be an individual citizen appealing to the supreme court. he very kindly said he would retain his privacy in this case. one of the things i would like to ask you both about -- in a later case, the university of california paid him more than $100,000 for his legal expenses. there are wonderful examples of who use ourizens system to get their case heard before the court. as we close out the series, would you talk about our system and how it allows the redress of grievances for people without special privilege among us? does so a lot it today because you can get a lot of free representation if you have a constitutional challenge other people are prepared to support. medicalt in the marijuana case took the exact
opposite approach to allan bakke . i really admire dr. bakke's refusal to allow his private life to become a matter of public record. it is admirable. i also think angel is admirable to make medical marijuana a national issue. litigatingt started on that issue in the 1990's, it was considered a prank issue. by the time we had a decision in 2005, it was a relatively mainstream position. to my surprise, more states recognize medical marijuana, in large part because of the effort up to raise the profile that issue and really change the politics of medical marijuana in this country. that is what one person was able to do in a single lawsuit. >> my first argument was a
guantanamo case. courtroom,ng in the that the guantanamo trials were unconstitutional. what does the decision mean? here is what i said, almost for , you have abatim man the lowest of the low. nation's most powerful man, the president of the united states, and he won. that is something great about our country. countries, hey'-- would have been shot. we have checks and balances. does not matter if you are the little guy, you can go after the big guy in the court. if you have a good argument, you
can win. susan: let's listen to mark in maine. >> good evening. i read the case reef and i was impressed with the decision -- and i was impressed with the decision. mr. bakke got his point across so they agreed with him. i think it worked out for the best. as far as the affirmative action was wondering if the attorneys could explain to me the difference between public school and private, where state action would be for public and private -- you would not have the constitutional provisions. can you explain a little bit about this? >> in general, the
constitutional does not bind private individuals, private actors. there are a couple exceptions, like slavery. no matter how discriminatory i am as a private citizen, i cannot violate the equal protection clause, but, i can violate title vi, that other, pesky statute we were talking about in the bakke case. if you are a recipient of federal funds, you are bound by certain the quality guarantees. case it was bakke said they are just like equal protection ones. susan: let's move on to later developments, affirmative action. california was back at it again with a proposition to the voters in 1996. california proposition 209. ,he outcome of that by 54-45 this allowed race being
considered at universities. let's move on to the supreme court cases. ask, how doesy this play a role in future affirmative action cases, such as the university of michigan cases. into -- 2003 there were two cases. and another to defend affirmative action. another at the university of another in13, and 2016. >> for purposes of this particular show, -- that is when rationalee powell's contains the majority rationale. andthose years between 1977 2003, it was just one opinion.
but five justices adopted the rationale, so it became the majority rule. with respect to bakke, that is why we are still talking about diversity today. it is fair to say that in all of them, the litigation strategy was justice powell. he had forged a smart way of thinking about this that resonated with what there lived it -- experience had been. by the time of the michigan law , will that survive?
fisher versus in a verse in the justice powell's opinion and it it fairly late in his career after he had been on the bench a couple decades. nonetheless, has embraced the same rationale. susan: students for fair admission and harvard, is a possibly a case he might have a chance to vote on? >> i am not going to talk about that one. >> it is a case in which asian-americans are challenging the admission process at harvard. there is another involving north carolina. the issue is whether asian-americans are being discriminated against by the affirmative action programs that are benefiting other minorities. it is very interesting because it is one thing to look at allan bakke and say, you're a white male, so you cannot be discriminated against. there is a good reason to believe asian-americans are
underrepresented, perhaps by design, perhaps in the way jews were underrepresented by the ivy leagues. there is this dichotomy of the court versus society. i want to put a favorite -- fairly recent question from gallup on the screen. 70% said colleges should admit on merit alone and 26% say race or ethnicity should be considered to promote student diversity. we also have that caller that asked about the trump administration. our producer researched and said he has not spoken about affirmative action. here is a new york times article, justice to take on affirmative action and looking for reverse discrimination
examples they might press on in the future. >> it is such a false dichotomy, whether it says merit or consider race. the point of justice powell, his genius was to say, race is part of merit. professor, i have taught in situations where there are no minorities in the classroom. how do you teach the case? it is tough. matters,that diversity it is not as race, it is politics, religion, geography. those that take it seriously are better universities. >> here is the problem, diversity sometimes is just used as a justification for helping out folks they think will be more in agreement with them. much more impressed if more schools of higher education put a premium on
intellectual diversity in addition to other forms of diversity in place. you have schools that do not did thatview neal intellectual and political diversity are important. to the contrary, there are increasing levels of discrimination of people on the basis of viewpoint. if diversity is the rationale for taking race into account, it ought to be the rationale for taking viewpoint into account as well. i am sad to say, largely it is not. susan: a viewer says bakke decision was unfortunate to say the least. as a white woman from a working-class background, i was graduateeceive two degrees. -- >> that is absolutely right. that is argument on behalf of
affirmative action. caller whot from the served his country and got the test scores he got and was not able to attend medical school. there is a problem here. it was highlighted in the bakke case itself. there were many more people applying for medical and law -- wes than were thought re spots. >> i agree with part of what randy is saying. the idea there had been some mistakes, you take this incredibly important tool off the table and federal courts are empowered to take it away from soversities, i think is pernicious and damaging to our educational system. you have university after university across the country saying, we need this for an effective classroom and learning experience. you have the u.s. military saying it, our corporate leaders . i think the courts need to stand
up and listen to that, as they have. susan: mark from new york city, you are on. honornk you, it is a high to call into this program. how is it it has not been mentioned that the biggest recipients of affirmative action are white women. and another, where does bakke stand in the constant -- constellation of affirmative action case decisions? stand?oes it thank you. susan: thank you. >> one of the problems this whole area has going forward is the notion of majority versus minority, because we have a country in which white males are not the majority, females actually outnumber males. the more diverse the country becomes demographically, the more difficult it will be to say
who was the majority and who is not. once you have decided everybody gets a preference because everybody is a minority, then nobody gets a preference. this is something that will have to be wrestled with in the future. trying to superimpose our past, what we had, centuries of oppression on the basis of race, where a particular group was singled out for enslavement, and then legal subordination for another 100 years is not the same as the types of obstacles many are facing today who are one kind of minority or another. asks on twitter, when does affirmative action and -- end? >> one justice said, maybe in a quarter-century. when the rationale for it goes away.
texas at toty of the supreme court a couple years ago saying, not now. right now, we really need it. thealifornia, there was proposition, the universities became far more white and less minority. bakke is a complicated decision and these things have a hard stakes on both sides. sometimeswell said, the best decision is a compromise decision, not the extreme on either side. our country is so divided right now, i think justice powell's method of listening to both sides and trying to come up with something that gives everyone something was a really instructive lesson for us all. susan: i want to thank both of you for being at the table. two terrific guests. on our series "landmark cases."
as we have been telling you, case for theinal season. a couple of thank yous, if you will allow me. wrote the book for this series. for the folks at the national constitution center, who are our partners in this series, you can see the people who helped research the cases, along with the president of the center, mr. rosen. let me show you all the people behind the camera. takes a lot of us to put this program together. you see our team, the technical and editorial team. our studio head, and all that worked with him on the technical side. leading.st