tv Landmark Cases Regents of the University of California v. Bakke CSPAN May 15, 2018 12:00am-1:34am EDT
daily. created as aan was public service by america's cable television companies. today, we continue to bring you unfiltered coverage of congress, the white house, the supreme court, and public policy events in washington, d.c. and around the country. c-span is brought to you by your cable or satellite provider. >> tonight on our final landmark cases program, we look at the regions of the university of california. a u.s. supreme court case on affirmative action. that is next on c-span. later, the opening of the new u.s. embassy in jerusalem. >> inside that car is alan bakke, returning to his home in los altos tonight, after winning his fight to enter medical school. >> i think it is a reflection of what life is like in the united
states. a reflection under gerald ford and an american society that said, these people can sit downstairs in the movie theater, they can register to vote, why aren't they happy with that? >> a majority of americans can support this. >> a majority of americans can >> affirmative action has been enhanced, which is what i told the president. >> what did you lose, 5-4? 8-1? 7-0? you have lost a great decision. ♪ >> "landmark cases," c-span's special history series, produced
in partnership with the national constitution center, exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> mr. chief justice and may it please the court. susan: welcome to landmark cases. tonight, affirmative action to . in 1978, the supreme court issued this decision on this issue in the bakke case. the uc's affirmative action 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. neal katyal argued 37 cases in the court overall.
he clerked for justice breyer. randy barnett is the director of the georgetown center for the constitution. he argued an important case before the supreme court and is the author of "a republican constitution," published in 2016. in that opening, the historic newscast with dan rather, we heard affirmative action, both its execution and value for a society, two very different views. what do you think, randy? randy: this basically set the agenda we live in today. all the talk we have heard about
diversity, everyone who has grown up in the last 30 or 40 years has heard about diversity. it never ends. diversity comes from this case, in powell's opinion, it became the rationale that allowed racial preferences to be used. susan: neal? neal: first of 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. susan: 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? 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 excluded from uc davis medical school on account of his race. that made it an equal protection case under the cases that had come out to that point. susan: we will listen to a clip. justice scalia and justice sotomayor both talk about affirmative action. [video clip] >> there are those who contend it does not benefit african-americans to get them into the university of texas
where they do not do well. as opposed to going to a slower track school where they do well. one of the briefs pointed out that most of the black don't come from the university of texas. don't come from the >> i was a law student. one of 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 [laughter] think graduating summa cum laude, 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 said in that oral argument, not 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 benefit everyone with experiences in and outside the classroom. it is that's rationale that conservative funded litigation has tried to knock out for years and have never really done a particularly good job. randy: 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. i thought the sotomayor excerpt for affirmative action has survived. it has become that way all over
i thought the sotomayor excerpt was kind of interesting. it suggested she was a little sensitive about being characterized as an affirmative characterized as an affirmative action admit. she didn't deny it, but she wanted to assert 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. neal: athletes, when they are condemned, because you got in because you play ball, or legacy admissions, what we are talking 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 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 mismatch theory, going to whether the policy is a good policy or not. it may or 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 that goes with the mismatch theory, going to whether the 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. let's go to the definition of affirmative action. we 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 going forward, with the government interest in giving people a leg up because of their gender or race? randy: i am old enough to remember that affirmative action had a somewhat different 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 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. it is important to be lies you 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. susan: a case in 1974 involved the university of washington law school. the court did something called ruling it moot. what happened there? neal: the case went away because of the change in circumstances. it happened to me this year, 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. similar, this case in 1974, the court says there is a change in circumstance. the person had graduated, and 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. deciding not to do something is leaving the democratic conversation to unfold. in 1974, 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. then, warren came off the court, replaced by chief justice burger. president nixon nominates four justices to the supreme court in the first three years of his term, four justices to the supreme court. by 1974, you have change in the way the court does composition. the court will not sometimes get into a hot button issue until term, four justices to the 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. alan bakke was 35 years old, a the bakke case was going on in 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 powell? randy: he was a man of the south, something that rankled justice thurgood marshall during the deliberations on this
particular case. getting him to come around and 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. abouthould people know 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. was a judge on the second circuit court of appeals in new york. first 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] >> we are in the madison building. what we have here 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 in murray v. pearson, a state of appeals of maryland case, in which murray had applied to admission to maryland law school and had been denied, just as marshall was denied three years earlier. they had been alyinlaying the groundwork for a new approach to
desegregation, statute by statute. law school was one means to do that. by working with pearson, marshall hoped to show the desegregation, statute by statute. at marshall gained a significant victory. pearson 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. 468 out of 500 in admissions. 3.46 undergraduate gpa.
he applied in 1973 and 1974, and was rejected both times. the second rejection was what he could've pursued this on the basis of age discrimination. randy: this was before age was considered any suspect was rejected both times. the second rejection was what started the legal challenge. i want to ask about the age factor. classification that could be challenged, or any civil rights laws on the basis of age discrimination. he was told by another medical school he interviewed with that his age made it uphill struggle for him to get admitted. he completed engineering school. he did a combat tour in the 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 age had a lot to do with it. neal: the university made a 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 have gotten in but for this affirmative action program. so many people demonize the other side. i was very struck by the tone the university took toward him
at every turn. showing him respect, we have a reason, but did not go after bakke. randy: bakke did not use this at every turn. showing him respect, we have a platform to create a cause for himself. he avoided the limelight during the litigation and everyday sense. that is not something we see nowadays, where everyone wants to be famous. susan: the first legal challenge was in yolo county superior court. the judge there found this program unconstitutional and in violation of title vi and that bakke's admission needed to be reconsidered. both parties ended up appealing. i'm wondering how often that happens. title xire was this
issue. he has talked about his affirmative action constitution under the 14th amendment, but a federal statute prohibits discrimination in universities that accept federal funding. issue. sometimes some of these court decisions talk about that statute, not the constitution. 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. susan: a 6-1 decision in favor of bakke. randy: right.
and they couldn't do it fast 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. talk about the jump from the california supreme court to the u.s. supreme court. neal: they have the option, do we ask the united states supreme california supreme court to the court to hear it? ordinarily, the court says, 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 certiorari. i, the supreme court, am asking you to hear my case. there are 9000 requests every year and the supreme court grants about 65 of them. the odds are very low. a case of importance and case in which the lower courts couldvided, that help. this is what the university did. they filed a petition to say, hear our case. it is not a petition that really sums up what we think of bakke. we think of him as the diversity rationale, people learning from each other. but on the first page, you are 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 to counteract the effects of 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: in a couple of minutes,
we will go to the court. let's go to the phone calls. first is glenn in michigan. caller: 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. there was the 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. it was decided in 2014, a ban on 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. it basically said, affirmative action was constitutional, but not a right. some argued it is. angry students 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. you have in michigan and california state referendums that ban affirmative action in the university. the plaintiffs came in and said, we have a constitutional right. 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. when bakke was litigated, archibald cox said, i am not here to say affirmative action is constitutionally compelled. i am here to say the university than it is within their constitutional right to do so. but it is also within their constitutional right not to have 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. neal: i have definitely applied the same standards myself, many people have. and i think president obama's 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. as long as it is done -- there are many statutes that require it. so if congress required it might is one thing. voluntaryis a decision by one president to have affirmative action, as suspect that there will be ways for a future president to get rid of it. there could be some expectation concerning government contracts and incision issues, but otherwise, i think the president would -- randy: the question is, does the statute gives the president the discretion, when he is issuing an affirmative executive order? if the statute doesn't, it is a different situation. susan: nathan is up next, from connecticut.
nathan: i did not expect that answer. thank you, susan for this series, it has been very educational. a quick comment, and then my question. my comment is that i personally support affirmative action, because i think we would've had ,n all-white police department an all-male fire departments without it. my question is, two of our presidents have been adamantly opposed to affirmative action, that was ronald reagan and george w. bush. has president trump gone on record regarding affirmative action at all? >> not that i know of. not that i know of. susan: do you have another question besides that? nathan: no. thank you. susan: our next caller is from new york city. caller: thank you, very much. i wanted to share some personal experience. physician from
queens, new york. not from the bronx, like sotomayor, but she is latina. from my perspective, affirmative action has enhanced the possibilities of many minority families to become well-off. i tell you that my wife became an obstetrician after going from queens in 1975 to a medical desk to dartmouth medical school in a three-year program that they had there. she went in a 1978 when that came about and then she went to a hospital where she trained as an ob/gyn. we had three kids. our first kid decided to become a doctor. before doing so, he went into the army and he happened to be a bronze honor veteran.
but right now, because of my wife becoming that doctor he got really motivated to go 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. so my final comment is that it does contribute to the betterment of the community. so i just wanted to share that with you. susan: thank you. thank you for calling it and sharing your story. >> i love your family. my hat is off to your wife and your son. one of the reasons your question
is so great, because it picks up on what happened at the oral argument in the case. the university of california's lawyer, archibald cox, he began the argument with three fax. let me read you his third fact. "there is no racially blind method of selection that will more than a track all of minority students into the nation's colleges and professions. ." we need saying, affirmative action, otherwise we would have almost no one. said, "yes commander is possible for a black to go to the university of minnesota or harvard or yale once they see affirmative action. ." so it is this idea of role modeling. when you see other minorities that are successful, you might be more likely to enter professions when she thought were closed. >> what is interesting, all of
these benefits that have certainly accrued to some beneficiaries of affirmative action, and i don't know that we can be sure that this caller check her family really benefited by affirmative action. they might have been admitted anyway, like sotomayor. we don't know that these are all relevant to the bakke case. they were not relevant to some of the justices. some of the justices wanted to decide this case on that. thurgood marshall, first it comeem, wanted to do about there were not any five votes to do that, there were only four votes eventually, and the fifth vote was a diversity. which reality talked about at the top of the show. so, none of those justifications are the constitutionally accepted justifications for affirmative action. they are not completely unmentioned in the opinion, but basically, does a school have an interest in having a diverse student body in order to enhance its educational program?
that is rather discussion of diversity has come from. narrow justice powell opinion, which for a very long time was on the justice powell's opinion, now represents the court. susan: lewis in fresno, california. lewis: i lived through 1978 and had at that time, a 98th percentile on the college physics admission test. in 1985, i retake the test and scored a 99.9% percentile in physics and 99.8% in biology and mathematics and life subjects. my question is, how did that case get to the u.s. supreme court went i was going to so very deservingt students throughout the entire nation? i have served in the air force,
then later, the army reserve and the california national guard. friends best, and i had from 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 99.9th 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 have gone beyond that, if it hadn't been for bakke winning when he did in the case. it was enough to affect all of the undergraduates who wanted to apply to medical school. susan: how did it affect them? what happened to you? did you go to medical school? caller: it was very discouraging. i went to medical school, pueblo medical school in mexico.
and i could not be a communist and that was required at the time. like i said, many of my uncles and my cousins had fought in the united states military. susan: lewis, thank you so much for your experience. then. move on thank you for your call, and having lived through that time a naturally applied to medical school. what the court look like in 1978. the newest justice was a ford appointee, john paul stevens. the next appointee was chief justice warren burger. earlier, johnson appointee thurgood marshall. a kennedy appointee. byron white was still on the court, and there were still two eisenhower appointees. this was the ninth year with warren burger as the chief justice. is there anything notable about the burger court in terms of its
racial decisions, decisions involving minorities? knew alreadyt alluded to, president nixon had made a number of appointees. including burger. as a result, the political valence of the court substantially changed from the court, which is what we might call it a progressive court, to a more conservative court, but accord that was not sort of rigidly conservative. it was just a pullback from the learned court, a retrenchment. so yes, it was actually quite significant. -- it was a pullback from the warren court, a retrenchment 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. 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 from this court.
what we get is the middle ground that justice powell represented. that sort of characteristic of the sort of middle ground which you ultimately got from the burger court. >> when you think of the supreme court and new study it, you just can't study one case, bakke, and say -- a snapshot 1978, none can figure it out. the question is, what was the court thinking at the time. the year before, the court decided something incredibly momentous, roe v. wade. it was a seven-to decision, and people took to the streets, they obviously put their thumb on one side of that scale. so is it any surprise that the next year after roe they don't want to jump into something with affirmative action? now one year has passed, but still, the court in the public eye has made a really strong decision with
abortion. so it is not all that surprising at the end of the day, that the court lands where they do on the bakke case, a middle-of-the-road decision. not one that gives all the rationales about affirmative action making up for societal discrimination or role models or anything like that, it is a much narrower rationale. susan you already told us about : granting certs. how we will use it from this point forward. the university of california filed for certiorari in we will december, 1976. return to the library of congress for an interesting backstairs look at how the court worked. this is a vote sheet from the harry blackmun papers about how they managed to get enough votes to move the case forward. >> this document is from the harry blackmun papers, a docket. this does a couple things.
one, it tells you in the case was argued, voted on and announced. anytime you want a case to be heard with the supreme court, you need to file a hur certiorari memo. it is often heard by clerks who pass it on to the justice who yea or nay, to hear it. there is a 5-4 split for certification. the liberal justices, particularly brennan and marshall were worried that a negative decision in this case, would not align with the jurisprudence they believed were was correct and just. they thought it would diminish civil rights policies and affirmative action, really undermining what marshall's worry was, which is yes, you passed laws to address these injustices, but you have not at the underlying infrastructure that created this
inequality. whereas the conservative justices were 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. susan: it was three times the court considered before they had enough votes to grant the case and move forward. are you familiar with the wrangling that goes on behind the scenes? >> absolutely. about it. and certainly, as a litigant before the court, you are trying to understand the process as best you can from the outside. what is interesting is normally, today in the modern supreme court, the people who grant of toe -- the people who vote hear a case, are the people who think the decision in the court and low was wrong. ok? so here, the decision was in favor of bakke, but the people who voted as you saw, where the
people who thought that the decision in the lower court was right. so it was the liberals on the court acting defensively saying, we don't want to hear it. because if you hear it, the law in california might be the law nationwide. no affirmative action. it was a very interesting thing. it is the case that the court will often re-list and discuss thing at another conference. so that it will come up for re-discussion week after week. indeed now, for the last several hass, the supreme court almost made a rule, that says you have to relist the case. they won't just decide on day one. susan: one follow-up, at the same time, 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 a turnover on affirmative action policies across the land. how influenced are they by outside pressure? >> i do not think it is right to think of the court as political.
i mean, once you get on the court, and this is true for justices appointed by republican presidents and democratic presidents, they are justices. they will vote against the president. rehnquist was put on the court by nixon but voted against nixon. kagan was put on the court but obama but voted against heart of obama's health-care plan. so there are all sorts of examples. breyer voting against clinton in the paula jones case -- so on and so forth. i do think that they think about, you know -- should we get into a case? is the country ready for that decision? have all of the issues been properly ventilated and the lower courts? >> here is that hasn't, yet. it takes for votes to grant cert but it takes five votes to win a case. so the four justices, they would actually get the court to hear the case if they want to, they
have to be about to count to five, or they won't be would to vote for cert. i think the problem for the liberal justices was that 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 case to go to the supreme court, because it were not sure that they could get the 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 actually an independent group of people associated with the cato institute and other libertarians, who brought that suit over the objection of the nra, who actually tried to subvert it. precisely for the same reason. they were afraid of a adverse ruling which would then and nationalize that decision. susan: is race-based affirmative action constitutional?
secondly, is the university of -basedrnia's quota affirmative action constitutional? let's hear archibald cox's arguments. on there wered october 12, 1977. two hours of arguments, little bit longer than usual to riyadh normally, it is usually one. do we know why it was longer in this case? >> sometimes they will expand an argument in major cases. this was a particularly important one. there were going to be three litigants, not two. who was archibald cox? >> he was a famous harvard law professor, he actually, after he retired, joined the faculty as emeritus. his office was next to mine when i was on the faculty of the university, so i occasionally heard his voice coming from his office. 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. a different special prosecutor, but that made archibald cox, who was at that point a somewhat obscure harvard law professor, to the general public, household name. >> and he might become a household name again. susan: we're going to listen in. as he made some of his arguments. >> the objective that impresses itself on my mind, partly because the dean testified, and partly because i am in part an educator, is the importance of including young men and women at both undergraduate and the medical schools. so that other younger boys and
girls may see that yes, it is possible for a black to go to university of minnesota or to go to harvard or yell. this is essential, if we're ever aing to give to equality in factual sense to people. because, the existence or nonexistence of opportunity, surely we all know, shapes people's aspirations when they are very young. >> mr. cox, what is davis medical school had decided since bad since the population of doctors in the minority population of doctors was so small, instead of setting aside 16 seats for minority doctors, they would set aside 50 seats, until the balance was addressed, and the minority population of doctors equal to that of the
population as a whole, would infirm thanmore i the foreground that davis has? i think my answer is that there is no reason to condemn a program because of a particular number chosen. susan: what do you think of this argument. >> i think my answer, and sounded like he was thinking about what his answer was when he said that. i was struck by the argument, i listened to the argument in preparation for the show, and i was struck by how the justices let him talk without interruption for great expenses of time. they treated him very differentially, the way that solicitor generals are usually the court. >> not anymore. >> they treated him very 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 anything about affirmative action, it is all because of one guy that we were talking about earlier, anthony scalia. you can listen to any case you want to, after justice scalia get on the court, everything is different. you can listen to any case you .org. like to on oyez court, thets on the oral argument becomes a very different thing. 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 one line out before i get a single question. let's one thing. the second thing is, you heard rehnquist askce the question, he was a phenomenal questioner. that question typifies a lot of supreme court arguments, which is -- i have read your brief, but how far does the logic of your decision and stand to?
sonic -- extend to? 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. >> and cox was reading that speech because at some point he skipped a line and had to -- >> had to go back and read it again. susan: here is someone arguing bakke case, on behalf of him. it is the only casey argued before the supreme court. -- the only case that he argued before the supreme court, let us take a listen. >> so use of racial classifications is unconstitutional? limitedecause it is rigidly to 16? >> no, not because it is limited to 16, but because the concept of race itself as a classification becomes, in our history and in our
an 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 or not it is in spanish. justice: do you mean, as to the 16 places, the allocation was dominantly by race? >> all, there is no question that the 16 places was dominated by race. and i have to go back to the record, if i may, just to reach that point. there were no non-minority people who were ever admitted to the special admissions program. and i do not mean that that was for the lack of trying. susan: what do you hear? >> it is always tough in the supreme court if it is your
first time, it is particularly tough, as it was for mr. colvin. someone on joined by 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. he hoped it would. i don't think it was because of the argument at the end of the day that he chose, as the tally sheet shows from the votes. i do here, i think all 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 of the argument, that you just heard. susan: we also heard that there
was another argument from the solicitor general, who happen to be an african-american himself, wade mccree, offering arguments on behalf of the administration, because of the national interest that the administration saw in the case. the brief, if you look in the archives, had a lot of inputs from members of the carter administration, as they prepared for the court. we will take another call. caller: thank you. this is great timing. we just discussed this in my high school african-american studies class today. my question has to do with the diversity rationale. was the diversity accepted as a rationale only race or could it be gender or political? could it be brace diversity, gender diversity or political diversity? secondly has there been any , meaningful research as to whether it actually gives superior educational outcomes, or is it just a plausible intuition?
on the first question, everyone agrees that the admission to herod occasion, diversion 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 schooland therefore the went for geographical diversity and honored to get some more iowa people in there who 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. under the equal protection clause, the issue was, is raise a no-no? not if other things could be used as a plus. dug out what was so interesting, is that the university did not emphasize diversity at all. in fact, you had to go to page 54 of their brief before they mention diversity and that it is not even a full sentence about it. but nonetheless, diversity became the rationale for the
controlling opinion by justice powell. and to answer the caller's question, justice powell said, uh, it cannot just be about 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. >> can i just say one thing about coleman's argument and his success? he starts his argument off by saying, i represent this man. he wants to get into medical school. well, you know what? 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. susan: our next caller is from nevada. you are on the air. lewis, go ahead, please. sorry, we will move on to adrian in the bronx, you're on. adrian: i am interested to find
out why -- i understand that bakke was contesting but why was the point not made about age discrimination? more of anto be issue, but he was rejected isause of his age, which what i was wondering. where was the point not made for age discrimination? this is said earlier, at point, age discrimination had not been considered either a constitutionally permission basis of a challenge or a statutorily permissible basis. it was not until the age discrimination act was passed under the first george bush, that this became a statutory remedy under u.s. law. susan: lewis in philadelphia, you are on the air. hello? go ahead, please. all right, we will move on. sorry about that. when we call you, i know you are listening to the screen but be ready to go with your question,
please. we are going to learn about the next part of it, which is getting to a majority. we will return to the library of congress's line graph showing justice powell's difficulty in getting to a majority. >> this is from our william j brennan papers. he was seen as justice marshall's liberal ally. this is from a memo written to his clerks for typing up later, in which he discusses the various avenues, curves and deliberations on this case. particularly the fact that marshall was offended by lewis powell's draft opinion, from marshall's point of view. >> it fails to acknowledge the larger structural inequalities that were established. doing is passing civil rights laws and not changing the underlying structure, then you are reasserting the same structural inequalities that have negated
african-american progress. for justice powell, if you turn on juneetter he wrote 20 7, 1970 8, 1 day before they announced his opinion, this letter is an attempt to try and cobble together one or two more opinions inside. i think he knows it is unlikely out, particularly at this 11th hour when he is putting out the memo. saying "as io by am a chief with no indians, i should be in the rear rank, not upfront." ironically, his opinion, despite the fact that it had no other fully co-signed justices on it, is the one that persists for the rest of the century. susan: so we are going to look at how the decision turned out. split on thefact two questions. affirmative action was constitutional, that was the majority of the justices'view.
or not the uc davis program was constitutional, it was no. powell, berger, stewart, rehnquist, stevens. there were also five concurrences and dissents, soy 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. first of all, on question one, is race-based admission constitutional? this was 5-4, regarding that question. here is an excerpt from justice powell's majority opinion. >> the court affirms the constitutional power of federal and state governments 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 bypassed racial budget is." here is stevens' dissent.
" it is therefore perfectly clear the question whether race can never be used as a factor in admissions 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 p are: let's talk about the opinions on that question. what should people take away from that? >> there were two issues, the principal was the constitutional issue, but the statutory one, as well. there were some justices, for, it turns out, who would have preferred to decide on statutory grounds, title vi grounds, rather than constitutional. there was an issue as to whether it an individual could assert collective action under title vi. i think it was steward whom it bothered the most. at any rate, as you say, the court eventually decides -- justice powell siding with the , four more liberal justices did reach the question and
constitutional question, and affirmative action was upheld. a way thatupheld in would 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 is it a goal? or something other than a quota? is this case would put us in the situation. >> there are nine justices on the court. at the end of an oral argument, like a day or two later, the nine will go in need in the conference room, and nobody also be there except for the nine justices. they will go around the table 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 it is unanimous, often times area at but sometimes, with a nine-member body, weird things happen. fourt this case, you have
justices who said that affirmative action violates the statute. four say it is totally cool, one saying that it is only kind of cool. it is that one justice's opinion that controls the court because it is the narrowest grounds of decision on which a majority agrees. so here, that never decision or the narrow rationale, was by justice powell. yes, he only got one vote, but boy, was it an influential vote? sometimes you're the only justice, but if you say something right, and ultimately takes off. justice scalia did it during the question act, justice rehnquist did it on the federalism issue in the he said 1970's. something that spoke to 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. so he was not present for the
conference, the first conference. they did not know how this case would come out until he got back. then they were able to get him to give an opinion. and even when he first got back in the beginning, he did not want to give an opinion. was finally the chief justice who had to go into his chambers and say, are you ready to vote yet? 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 that it was not constitutional. there was a 5-4 decision, again. excerpt from justice powell's majority opinion on question two. " the special administration program is based on race and ethnic that ground. the guarantee of equal protection cannot mean one thing when applied to one individual else whenthing 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
writes "it is more than a little ironic that after years of discrimination against knee gross, the court is unwilling to hold that a class-based remedy for that ." crimination is permissible comments? randy: this remedial view does not command the majority of the court, despite justice marshall's passion on the issue. so as a result, justice powell's decision, which says no quotas, diversity- engage in based affirmative action, which looks at the whole person and allows every person to compete for every slot. that was ok. what was wrong with the university of california system, was that a told people, 16 out of 100 slots, you cannot apply if you are a caucasian. you don't even get to think about it. that is what justice powell said was wrong. and i think that is where the country was and is today.
>> justice marshall's view that you just quoted represents one side of two different versions on discrimination and race which separate the court even today. on the one hand, you have justice marshall and the liberals today on the court, who say, what is banned by the 14th amendment is invidious discrimination. discrimination that is actually aimed at the meaning, undermining or subordinating one group of people. what is not banned by the 14th amendment, is the nine discrimination, discrimination that is set to help. on the other side of the court, is the view that the use of race in classifications other than to remedy violations by the party before the court, the use of race is so insidious it should simply not be used as a classification at all.
and even if you think you are using it benignly, you may not actually be using it like that. that is the divide that separated the court then, and i think it separates the court today. susan: here is a comment on twitter. it operates against those who suffered past harms and abuses, it was intended as a remedy in the reconstruction amendments for race-based enslavement. let us listen to what the students and in university community, how they reacted. this is from a cbs documentary on the case. >> 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 davis medical school, called the ruling a slap on the face. saying that the struggle for equal rights is being undermined. >> if it took hundreds of years to build a house and someone
came along with a match and burned the house down, how would you feel about that? >> another med student said he felt pretty good. because it was a questionable program with questionable criteria involved in riyadh it was explicitly preventing white students from applying to the program. susan: we will look at what some of the nationals are reporting on it. the los angeles times, one of the major newspapers in the wins when theke 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 issue after. it did not build up to that decision. this is an issue teed up.
everybody was ready for a big decision with that case, and they were disappointed. now, they were going to get it. it was a subject of huge controversy. it was perhaps the most publicly debated and protested outside the supreme court decision that had happened up until that point. susan: and our final segment, we will look at the legacy of the case. but first, some phone calls. 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 how influential he was on the supreme court in general? heon this decision, obviously, lost. the remedial, broad view of affirmative action did not prevail. i think justice marshall as a
justice, it was maybe not as successful as the others. there is a the number of reasons why that could be, including the fact that president nixon had so many appointments, as did president reagan. so there was a bunch of things going into that. but i think it is fair to say legacy as a justice was not quite the legacy of a litigator, although that is pretty much a totally unfair standard, since you are talking not the greatest litigator in the united states history, the second greatest litigator. >> in this case, justice marshall greatly influenced justice brennan on this discussion, and 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 a sense, for thurgood. referred tothey each other. so, justice marshall's influence was felt in this case as well. susan: michael in san diego you are on the air. caller: i was a student at ucsd
in 1975, i was a medical poor corpsman in the u.s. navy overseas. i fought for this country and i wantedme back come to pursue menacing as a career. and i was denied. i was denied my right that i've fought for to go ahead and become a physician. i will be retiring from the school district next year, i have 12 more classes of law school, and then i will go ahead and practice law at age 1972 72-70 three, 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? >> i love the question because it does really highlight the passion and the stakes that are
at issue in something like this. it also highlights, i think, why the bakke decision was so powerful. because it said two people, like this brave caller that has called in, we are not going to have quotas anymore. preferences and any other number of diversity preferences, where you come from, social economics and so on, but we will never tell you that you are ineligible for a seat because of the color of your skin. it was for that reason that it was a widely-celebrated decision. the wall street journal called it "the decision that everybody won." the new york times said it pleased a broad spectrum of people on both sides of the issue. i think it was a needle justice powell threaded for the court. susan: let's go on to what happened to allan bakke. first of all, we are going to play a clip that answers some of that question.
then we will talk more about what happened in his life. >> the public knows little about him and that is because he was to remain as unknown as possible. be hist is believed to first interview ever, we spoke about the decision and about his penchant for privacy. >> i am pleased with the decision, and that is all i intended to comment about it >> why haven't you spoke out before? >> it is my personal preference not to speak publicly about the case. i like to keep my private life private. a privateis not 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 plan to go to medical school? >> yes, i do plan to go in the fall. >> on another note, an update from the university of california davis. 97 medical students graduated from there today, including allan bakke, who challenge the university's racial quota system. he had charged that he was denied admission in favor of
minorities who scored lower on the entry exam. ultimately the supreme court ruled in his favor. he began serving his residency at the mayo clinic in july. susan: as you heard, he became a andor at the mayo clinic worked many years as an anesthesiologist in minnesota. he retired about 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 wanted to ask you both, i should add one of the thing -- and a later case, the university of california paid him more than $100,000 for his legal expenses. throughout both series one and there are these
wonderful examples of everyday citizens, who use our system to get their case heard before the court. as we close out the series, talk about our system, and how it allows the redress of grievances for people without special privilege among us? >> it does and it does so a lot today, because you can actually get a lot of free representation, if you have a constitutional challenge that other people are prepared to support. my client in the medical marijuana case that led to gonzales versus rich, 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. i think it is quite admirable. i also think it is quite admirable that angel used the platform of our lawsuit to make medical marijuana a national issue. when i first started litigating in the 1990's, it was considered a fringe issue. by the time we had a decision in 2005, itme court in
was a relatively mainstream position and much to my surprise, many states continue to recognize medical marijuana, in large part because of the did, she usedgel that platform to do television show after television show, interview after interview, to raise the profile of the issue, and to really change the politics of medical marijuana in this country. that is what one person was able to do in a single lawsuit. doug i have a similar story. my first argument was a guantanamo case, in which i represented been led in choco driver. driver.aden's i was sitting in the courtroom, that the guantanamo trials were unconstitutional. what does the decision mean? here is what i said, almost verbatim, you have a man the lowest of the low. here is what happened today. accused of being bin laden choco
driver. he sued, not just everyone, but he sued the world's most powerful man, the president of the united states won. ,and he that is what is so great about the system. in many other countries, this man would have been shot for doing something like that. but that is what makes america special we have checks and balances. does not matter if you are the little guy, you can go after the big guy in the court. and if you have a good argument, you can win. susan: let's listen to mark in sanford, maine. marx, your question. mark: good evening. i read the case brief and i was impressed with the split decision. i kind of understood it, but mr. bakke got his point across so they agreed with him. higher, his scores were than any of the minority students that were picked. so i think it worked out for the best.
as far as the affirmative-action goes, i 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 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. you need to be what is called a "state actor." 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. it says, if you are a recipient of federal funds, you are bound by certain equality guarantees,
which the supreme court in the bakke case it was said they are just like equal protection ones. bindr that reason, it does avid actors too. 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. the outcome of that by 54-45, it disallowed race being considered at universities. in admissions. let's move on to the supreme court cases. mr. putnam on twitter asks, how does the decision on that case play a role in future affirmative action cases, such as the university of michigan cases? here is a full list. there were 2 cases in 2003, then in 2014, there was one case to defend affirmative action.
fisher versus university of texas in 2013, and another case in 2016. so, we will have to wrap them all up into one. >> for the purposes of this particular show, screwed or and that is when the justice powell's rationale contains the majority rationale. all those years between 1977 and 2003, it was just one opinion. but five justices adopted the diversity rationale integrator and gratz, and that became the majority view. so historically with respect to when it comes into play, and we are still talking about diversity today. i hold those cases intimately, and i think it is fair to say that in all of them, the litigation strategy was
justice powell, just as well, justice powell. he had forged a smart way of thinking about this that captured and resonated with what the university administrators choco experience had been. administrators'experience had been. by the time of the michigan law school case, 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, he also embraced the same rationale. susan: there is a case in the courts right now, students for fair admission versus harvard. is that possibly a case you might have a chance -- 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. affirmative action programs that -- 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 allen bakke and say, you're a white male, so you cannot be discriminated against. but there is a good reason to believe that asians are significantly underrepresented, or haps by design, the way that jews were underrepresented by design in the ivy league's, when aswas first created justification for a kind of discrimination. susan: there is this dichotomy of the court versus society. who influences whom. i want to put a fairly recent public opinion question from gallup in 2016. 70% of respondents said colleges should admit on merit alone and
26% say race or ethnicity should be considered to boost 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. you might remember i had lent from the justice department -- here is the article, -- justice department to take on affirmative action in college admissions and look for a reverse discrimination examples they might press on in the future. dugout what i would say about that is that it is such a false dichotomy. where a survey says oh, take on merit or consider race. the point of justice powell, his genius was to say, race is part of merit. you know, as a law professor, i have taught in situations where there are no minorities in the classroom area how do you teach the bernie gets case? it is tough. so the idea that diversity
matters to the educational experience, and it is not just race, it is all it takes, religion, geography. the universities that take that mission seriously are better universities. >> here is the problem, diversity sometimes is just used as a justification for helping out folks that they think will be more in agreement with them. i would be much more impressed if more schools of higher education put a premium on intellectual diversity in addition to other forms of diversity in place. -- other forms of diversity that are currently taking place. you have schools that do not take the view neal did that intellectual and political diversity are important. to the contrary, there are an facts, increasing levels of discrimination against people on the basis of that viewpoint. so, if diversity is the rationale for taking race into account, it ought to be the rationale for taking viewpoint into account as well. and i am sad to say, that
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 able to earn 2 graduate degrees due to affirmative action. we need more justices like justice sotomayor who understand how hard some of us have to get just to get to the starting line. >> that is absolutely right. that is argument on behalf of affirmative action. then he have the argument from the previous caller that we heard, who served his country, and who got the test scores he got come i was not able to attend medical school. so there is a problem here. and it was actually highlighted in the bakke case itself. more were many, many people applying for medical and law schools that day, than there were spots. >> i agree with part of what randy is saying. the idea there had been some
mistakes in some universities, is that you take this incredibly important tool off the table, and say that the federal courts are empowered to take it away from universities -- i think it is so pernicious and damaging to our educational system. when you have university after university across the country saying, we need this for an effective classroom and learning experience. we have our u.s. military saying -- you have all of our corporate leaders, our ceo saying it, i think the courts need to stand up and listen to that, as they have. susan: marcelo from new york city, you're on. >> thank you, it is a high honor to call into this program. just one quick comment. how come and has not been mentioned in the case that the biggest recipients of affirmative action are white women? and another question, where does bakke stand in the constellation of affirmative action case decisions?
where does it stand? 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 in the country, females actually outnumber males. the more diverse the country becomes demographically, the more difficult it will be to say exactly who is the majority, and who isn't. 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, where we had decades and decades, centuries of oppression, on the basis of race , where a particular group was
actually singled out for enslavement, and then legal subordination for another 100 years, is not necessarily the same, as the type of obstacles that many people are facing today. people who are one kind of minority or another. susan: jude asks on twitter, when does affirmative action end? injustice o'connor said 2003, maybe it will end in a quarter century. i think it ends when the rationale for it goes away, and here, you have a think, a tremendous record. the university of texas just let it to the supreme court a couple of years ago saying, not now. right now, we really need it. because without it, you could have what happened in california where without the proposition, the universities came far, far more white and less minority. bakke is a complicated decision and these things have a hard
really come hard emotional stakes on both sides. justice powell said, sometimes the best decision is a compromise decision, not the extreme on either side. you know, in our country that is so divided right now, i take justice powell's of listening to both sides, and trying to and trying to come up with that gives someone something is instructive. >> thank you for being at the table and helping us understand society grapples with this. this is the final case and a couple of thank you's. a veteran supreme court -- thank yous. a veteran supreme court reporter who contributed to this and those at the national constitution center who are our partners and the people who researched the cases.