Transcripts For CSPAN3 Landmark Cases Supreme Court Landmark Case Regents Of The University Of... 20240712

A reflection under gerald ford and nixon under an American Society that said, these people can sit downstairs in the movie theater, they can register to vote, why are a majority of americans can support this. My general view is, affirmative action has been enhanced. Thats what i told the president. And he was pleased to know. That when you lose, what five to four . Eight to one . Seven to one . What it is all said that in the ninth hitting you lost great. Decision all persons having business for the honorable Supreme Court. Landmark cases, see spans 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 Welcome to landmark cases. Tonight, affirmative action, in 19 78th a Supreme Court issued the decision in this on what is called the bakke case the ucs 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. Neil argued 37 cases in the court overall. He clerked for justice breyer. And he is today partner in a d. C. Law firm. 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 action views, both this execution and value for a society, two very different views. What do you think, randy . These basically set the agenda we live in today. All the top we have heard about diversity, everyone who is grown up in the last 30 or 40 years, it never ends talking about diversity. It comes from this case and Justice Powells opinion when it became the rationale that allowed racial preferences to be used. We have been talking about diversity ever since this case. First of all, it is a joy to be here with both of you. And i agree with you entirely. Im not sure all be saying that all night, but for right now you are absolutely right. Bakke set the terms of the debate for affirmative action front and center. The debates we have had ever since our microcosms are what we saw in the clips. This is a 14th amendment case, but of the 14th amendment to the constitution which says no state shall make or force any law which shall abridge the privileges or immunities of citizens of the u. S. , marshal any state deprive any person of life, liberty or property without due process of law. Nor denied any person within its jurisdiction equal protection of the laws. What aspect of bakke makes the 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. ,. Justice scalia and Justice Sotomayor both talk about affirmative action. There are those who contend it does not benefit africanamericans to get them into the university of texas where they do not do well, as opposed to having them go to a less advanced school, a slower track school. One of the briefs pointed out that most of the black scientists in this country dont come from schools like the university of texas. They come from lesser schools where they do not feel that they are being pushed ahead in classes that are too fast for them 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 hadnt seen my resume, yet. [laughter] i looked at him and said, it might have helped, but i also think graduating summa cum lude, 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. That comes back to what we are talking about today, the bakke. The rationale for affirmative action has. Survive it has become the template all over the country, it is not, we are trying to benefit some minority. It is trying we are trying to benefit everyone through diversity of experiences in and outside of the classroom. It is that rationale that conservative funded litigation has tried to knock out for years and has never really done a particular good job of getting rid of. Justice scalias was that was not his finest moment and how he tricky late the point. He tried to articulate the mismatch theory, people need to be admitted to schools that they are more qualified for because they will do better in those schools, graduate more frequently and it will be beneficial to everyone if they are matched. Thats what he was trying to articulate. I thought the Justice Sotomayor excerpt was kind of interesting. It suggested she was a little sensitive about being characterized about being an affirmative action admittance. She didnt 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. 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. Thats it stigmatize or not. But the idea this makes it unconstitutional is very tough. 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. 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. Lets go to the roots of 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 1960s and Going Forward, with the government interest in giving people a leg up because of their gender or race . 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. And we should affirmative lee. If we want to have an integrated society, we should affirmatively go out and identifyqualified people, and make an effort to recruit and hire them. The affirmative action parts meant that, it didnt necessarily mean preferential treatment or different standards. For better or for worse, that came to be later on. It is important to be realize 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. One of my proudest moment said georgetown. 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. A case in 1974 involved the university of washington law school. What happened there . Moot means 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 circumstances. The person had graduated, and the case has gone away. One of the fundamental lessons about the u. S. Supreme court, they dont 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. 1974, you have change in the way the court does composition 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. By telling the case moot, they let the case unfold. The bakke case was going on in the california Supreme Court system. Other cases were unfolding of the lower court. That is common. Other cases you will be hearing about. The regions of the university of california, the governing body of the school, they opened a new metal school in 1968. The first class was all white. To remedy that, 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 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 . 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. Another member of this cast tonight, Justice Thurgood marshall. Can you tell me about him . N probably the most legendary lawyer in 200 years. Maybe Daniel Webster could give him a run for his money. He created a litigation strategy that led to brown versus board of education. Became our first africanamerican solicitor general. He was a judge on the Second Circuit court of appeals in new york. He was the first africanamerican justice on the Supreme Court and a legendary hero and figure. we visited the library of congress and their archives on legal matters. Ryan shows us a letter written to the naacp from Justice Marshall. 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 in 1936. The reason for this letter was to draw attention to the victory in murray vs. Pearson, a state of appeals of maryland case, in which murray had applied to admission to Maryland Law School and had been denied, Justice Marshall was denied three years earlier. The groundwork was late for a new approach to desegregation, by dismantaling statute by statute. Law school was one needs to do that. They hope to demonstrate that marshall had gained a significant victory to the strategy for desegregation and it would be effective. And three, two students already working for the naacp, this is a means to advertised and to draw him in to chaplain a year later. He becomes a central actor in these efforts. So his own experienced background and the case in which he was involved with all come to bear as he comes to his argument. Lets tell you a little bit more about alan bakke, as he applied for medical school. He was foreigner 68 out of 500 square in the schools admission rating scale, 3. 4 six undergraduate gpa. He scored in the 97th percentile on the Medical College admission test. The average was 69. He applied twice, once in 1973 months in 1974, rejected both times. The second rejection was what started the legal challenge. I want to ask about the age factor. He couldve pursued this on the basis of age discrimination. This 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 interviewed with that his age made it an up hill struggle for him to get 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 wasnt 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. the University Made a conscious decision not to go after bakke in any way. The california Supreme Court said, maybe he would not have gotten him admitted, but the university conceded he would have gotten in but for this affirmative Action Program. In this day and age when frankly so many people demonize the other side, its i was very struck by the tone the university took toward him at every turn. And saying we have a principled reason we have affirmative reaction. But they didnt go after him. Bakke did not use this platform to create a cause for himself. He avoided the limelight during the litigation and everyday since the litigation. That is not something we see nowadays, where Everyone Wants to be famous. The first legal challenge was in a dillow county superior court. The judge there found this programunconstitutional violation of title vi and that bakkes admission needed to be reconsidered. Both parties ended up appealing. Explained how that happened. There was this title six issue, we talked about his affirmative action constitution under the 14th amendment, but a federal statute prohibits discrimination in universities that accept federal funding. 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 dont want to go to california intermediate court, the court of appeals in california. California Supreme Court, lets 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. A 61 decision in favor of bakke. Right. And they couldnt do it fast enough before the person graduated and they knew the Supreme Court was prepared to hear a case like this. They said, lets get a move on. 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. After the california Supreme Court decision came down they have the option, do we ask the United States Supreme Court to. To hear it . Ordinarily, the court says, california court, you know california law, we dont 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 i, the Supreme Court, and asking you to hear my case. There are 9000 requests every year and the Supreme Court grants about 65 of them. 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 equal protection clause prohibit a university of protection clause of entity faculty from voluntary seeking to counteract the effects of generations of pervasive discrimination against minorities by establishing a limited special Admissions Program that increases opportunities for well qualified members of racial minorities . That is a long question. But basically what it is saying at the end, can we have 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. We will learn about the case this court went to, first we will take phone calls. This is glenn in michigan. I have a couple of questions. One is about the state affirmative Action Programs. Here in michigan and california, this led the way for a number of states to do this. We had a valid initiative that got rid of race and gender preferences and that kind of stuff, that passed overwhelmingly and became the subject of a lawsuit that went all the way to the Supreme Court itself. 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 62 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. Ive heard demonstrations with 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 president ial 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. 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. 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 affirmative action as an embedded right you can take away even when there is not a need for it, any number of things can change. When bakke was lititgated, Archibald Cox said, i am not here to say affirmative action is constitutionally compelled. I am here to say the university decides with its leadership to have affirmative action. Then it is within their constitutional right to do so. But it is also within their constitutional right not to have the program. I dont have that much to add. How about his second question . 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 that we didnt hear about before. I would be interested in hearing what neal thinks. I think president obamas executive actions were challenged every day. It is not like we are 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. If law of congress requires it, that is one thing. If 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. There will be certain government contracts. The question is, does the statute gives the president the discretion, when he is issuing an affirmative executive order . If a statute doesnt, that is completely different. I didnt expect that answer, thank you for the series, it has been very educational. A quick comment on the my question. My comment is that i personally support affirmative action. I think we wouldve had all white Police Departments and all male Fire Departments without it. My question is, too far president s have been adamantly opposed to affirmative action, Ronald Reagan and bush. Has President Trump gone on record regarding affirmative action at all . Not that i know. Not that i know. Of sounds like no. You have another question besides that . Thank you. Next is rafael in new york city. Great, this is my first time. 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. My perspective, affirmative action has the possibility for many minorities to become welloff. I tell you that my wife became an obstetrician after going from queens in 1975 to a medical school, a threeyear program. She came in 1978 and went back. She went to a hospital where she trained as an ob gyn. We had three children. 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. Right now, because of my wife becoming that doctor. That really motivated my son that if he was 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. It does contribute to the betterment of the community i wanted to share that with you. Thank you for calling it and sharing your story. I love your family. My hat is off to your wife and 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 three facts. There is no racially blind method of selection that will allow more than a trickle of minority students into the Nations 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 see other 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 that we can be sure that this callers family really was benefited by affirmative action. They might have been admitted anyway, like sotomayor. That these are all relevant to the bakke case. Some of the justices wanted to decide this case on that. Thurgood marshall, first among them, wanted to do that. There were not five votes to do that. There were only four votes eventually to do that. The fifth vote was diversity. We already went through this at the top of the show. None of those justifications are the constitutionally accepted justifications for affirmative action. They are not completely unmentioned in the opinion, but basically does the school have an interest in having a diverse student 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 Powells opinion, now represents the court. Lewis in california, you are up next. I lived through 1978 and i had even at the prime, a 98 percentile on the College Admissions tests. In 1985, i took the test again and scored 99. 9 percentile in physics and 98 in biology and mathematics and life subjects. How did the case get to the u. S. Supreme court when he was 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 wouldve 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 winning when he did in the case. It was enough to affect all of the undergraduates who wanted to apply to medical school. How did it affect them . How did it affect him . 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. Thank you. Im not sure if we can process anything there to understand the case better. Let me move on. Thank you for 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. That was fired white still on the court. And, 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 decisions involving minorities . President nixon had made a number of appointees. As a result, the political 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. Yeah, it was actually quite significant. We would associate the position of the four justices who were aligned with Justice Marshall in this case. With the warren court wouldve been expected to do that, but because we are now in the burger court that is not what we get. We also dont 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. You cant just study one case, bakke, and say thats it, 1978. 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. It was a seven to two decision. People took to the streets. They were on one side of that scale. Is it any surprise they dont want to jump into affirmative action . Now four years have passed. The court is defined in the public eye by abortion and a strong decision. It is not surprising that court lands where they do with the middleoftheroad compromise position. It is not about making up for societal discrimination or role models or anything like that. It is a much narrower rationale. You already told us about granting certs. The university of california filed in december 1976. We will 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. This does a couple things. It tells you when the case was argued. When it was voted on. 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. To deny or grant the hearing. There is a 54 split for certification. The liberal justices, particularly brennan and marshall were worried that a negative decision would not align with the jurisprudence they believed were correct and just. They thought it would diminish civil rights policies and undermine the main worry that yes, you pass laws but you have not gotten at the underlying infrastructure that created them. The conservative justices were more concerned with kind of the liberty issue. They are ready to hear this case because it does a align 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. As a litigant before the court, you are trying to understand the process as best you can from the outside. But basically does the what is interesting is normally, the people who grant a vote to grant to hear case are the people who think the decision in the court below was wrong. Here, the decision was in favor of bakke but the people who 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. Because if you hear it, the law in california might be the law nationwide. It was interesting. The courts will often relist and discuss things at another conference. It will come up for rediscussion week after week. Now it is almost a rule that says, you have to relist. They wont 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 policies turned over 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 youve been on the court, this is true for justices appointed by republican and democratic president s, they are justices. They will vote against the president. Rehnquist was put on the court by nixon but voted against nixon. There are all sorts of examples. Breyer voting against clinton in the politicians case and so on. I do think that they do think about should we get into a case . Is the country ready for that decision . Have all of the issues been properly ventilated and in the lower courts . It takes four votes to grant cert but it takes five votes to win a case. So the four justices, they would have to be able to count it at five or they wont 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 the right to bear arms. The nra did not want to raise it 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. National ruling. Susan is racebased affirmative action constitutional . Is the university of californias quota base affirmative action constitutional . Lets hear Archibald Coxs arguments. There were two hours of arguments. A little bit longer than the usual. Are they now longer . Sometimes they will expand an arguments 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 wellknown. He was bestknown 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 coxs 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 at that time is somewhat obscure harvard law professor, a household name. And he might become a household name again. Susan were going to listen in. The objective that impresses itself on my mind, partly because of the testimony and 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 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 peoples 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 of setting aside 16 seats they would set aside 50 seats until that balance was adjusted and the minority population of doctors equaled that of the population as all whole. Would that be any more in affirmative program than 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. I 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. 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 dont 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 were talking about earlier, anthony scalia. You can listen to any oral argument you want to, after Justice Scalia get on the 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. Also, you heard thenjustice rehnquist ask that question. Rehnquist was a phenomenal questioner. That question is typical of a lot of Supreme Court arguments, 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. Ask cox was 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. Susan here is 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 . We believe it is unconstitutional. Not because it is limited to 16, but because the concept of race itself as a classification becomes, in our history and in our understanding, 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 sounds 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 nonminority people who were ever admitted to the special Admissions Program. 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. 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. So, as a whole, the argument did not go as he hoped it would there. I do not think it was the argument at the end of the day as he chose. I think all through the litigation, the strategy of bakke was to say this is a quota. There are 16 slots that 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 there is also an argument from the solicitor general who also happen to be africanamerican. It was on part of the 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 africanamerican studies class today. My question has to do with the diversity rationale. Was the diversity that was accepted as a 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 . On the first question, the issue here was whether 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 where they went or geographical diversity in order to get some more iowa people in, 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. So the issue is, is race a nono. Not if other things could be used as a plus. They 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 on 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. We will move on to adrien from the bronx. You are on. Caller i am interested to find out why, i understand why bakke was contesting, but why was not the point made about age discrimination . He was rejected because of his age, like 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 discrimination act was passed but i figure it was under the first bush, that this became a remedy under u. S. Law. Susan philadelphia, you are on the air. Hello . We will move on. 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 Powells of a call to getting to a majority. This is from our William Brennan papers. He was seen as Justice Marshalls 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 Powells draft opinion, from marshalls point of view. It failed to look at the larger inequalities. If all you are doing is passing those laws, and not changing the structure, you are reapplying or reasserting the same kind of structural inequalities that have negative africanamerican 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 together one or two more 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 the rear rank, not upfront. Ironically, powells opinion despite the fact it had no other fully cosigned justices on it, is the one that exists throughout the century. 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 racebased constitutional . The Court Affirms the 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 one is something a quarter when is it a goal and it is this case that put us into that situation. Let me just back up here, there are nine justices on the court and at the end of an oral argument a day or two later they will lead in a conference room, and no one else will be there except the nine justices. They will go around the table and say how do they intend to build the case. Ordinarily its a decision that some people in the majority and sometimes its unanimous in which they all agree but sometimes you get these weird things happening like in this case you have four justices for affirmative action, and four of them are completely cool so one justice is saying its only kind of cool. Its that one justices opinion that draws the court. Its on that opinion which the majority of the court agrees. So there is a rationale, and the justice had only got one vote but it is influential. But sometimes if you Say Something right it really takes off. Justice rehnquist did it on federal issues in the 1970s, and here you have powell doing it here. He said something that spoke to the lived experience of the universities and the administrations picked up on what it meant. There is one twist on the story here is that Justice Blackmon was having Prostate Cancer taking care of. And they didnt know how this case was going to come out until he came back and even in the beginning when he got back, you know i think it was the chief justice that had to go into his chambers and said are you ready to tell us how youre going to vote yet . And then eventually he did, and then to the surprise of some members of the court he did side with the liberal side of the court. So the second question is about the university of californias quotas based affirmative Action System saying it was not constitutional it was a five four decision again. Here is an exit from the justice. Back a. The special Admissions Program is undeniably a classification based on race and ethnic background. The guarantee of equal protection cannot mean one thing one applied to one individual and Something Else will apply to another person of another background. And the justice rice on this it is more than a little ironic that after several hundred years of class based discrimination against knee grows, the court is and willing to hold that a class based remedy for that discrimination is permissible. So this kind of a medial affirmative action does not command the majority of the court, despite his passion on the issue. As a resort Justice Powell says, you can engage in diversity based affirmative action. So it allows every person to compete for every slot, what was wrong with the california system, is that told people 16 out of the hundred slots, you cannot apply if you are caucasian. You dont even have a chance and it. And that Justice Powell said was wrong. And thats where the heart of the country is was and is today. The view that you just quoted represents one side of two different versions of separation and race and. This is actually how i teach the cases. So what they call invidious discrimination, its undermining or subordinating one group of people, and what is not banned by the 14th amendment, is benign discrimination. Discrimination which is meant to help. The use of race, is so insidious that should simply not be used as a classification at all, and even if you think youre using the dynasty you may not be using it that way 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 is intended as a remedy in the reconstruction amendments. Lets see what students in the university community, how they are reacting. This is from a cbs documentary on the block he 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 school call it a slap in the face, saying the struggle for equal rights was being undermined. If it took you two hundred 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. It was explicitly preventing some from applying to the program. Susan we will look at what some of the nationals are reporting on it. Los angeles times, when the 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. It was perhaps 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. But first some 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 on the Supreme Court in general . On this decision he lost. The remedial, long view of affirmative action did not prevail. Justice marshall as a justice 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. Not the greatest litigator in 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 Brennans part to get the four vote block. He did that in part for thurgood. Justice marshalls influence was felt as well. Susan michael in san diego you are on the air. Caller i was a student at ucsd in 1975, medical training for the u. S. Navy. I was overseas. I fought for this country and when i came back i wanted to pursue medicine as a career i fought for this 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 law, 19721973, 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 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 programs in any number of preferences, where you come from, but we will never tell you that you are not eligible just 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. 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 lets go on to what happened to allan bakke. We will play a clip that answers part of that . In what is believed to be his first interview ever, we spoke about his penchant for privacy. I made a decision, and thats all i have to comment about. It why havent you spoken out before . Its my personal preference, not to speak publicly about a case. I like to keep my life private. But it is not a private, matter when it comes to the u. S. Supreme court. My life is private and i expect to keep it that way. If you plan to go to medical . School yes 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. Dr. Bakke serves in his residency at the mayo clinic in july. Susan he did a residency and fellowship at the mayo clinic. Dr. Bakke 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 everyday citizens who use our 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 for grievances for people without special privilege among us . It does and it does so a lot today because you can get a lot of free representation if you have a constitutional challenge other people are prepared to support. My client in the medical marijuana case took the exact opposite approach to allan bakke. I really admire dr. Bakkes 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. When i first started litigating on that issue in the 1990s, 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 angel did come 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. I have a similar story. My first argument was a guantanamo case. 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. He sued the nations most powerful man, the president of the United States, and he won. That is something great about our country. In many other countries, he 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 lets listen to mark in maine. Good evening. I read the case 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 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 you would not have the constitutional provisions. Can you explain a little bit about this . In general, the constitution does not bind private individuals, private actors. There are a couple of exceptions, like slavery. But 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. Which in the bakke case it was said they are just like equal protection ones. Susan lets 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 5445, this disallowed race being considered at universities. Lets move on to the Supreme Court cases. On twitter they ask, how does this play a role in future affirmative action cases, such as the university of michigan cases. In 2003 there were two cases. And another to defend affirmative action. Another at the university of texas in 2013, and another in 2016. For purposes of this particular show, that is when the Justice Powells rationale contains the majority rationale. All those years between 1977 and 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. I know all of those cases intimately and i think its 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 School case, diversity became the rationale, will that survive . Fisher versus in a verse in the Justice Powells 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 possible case he might have a chance to vote on . I am not going to talk about that one. It is a case in which asianamericans are challenging the admission process at harvard. There is another involving north carolina. The issue is whether asianamericans 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, youre a white male, so you cannot be discriminated against. But there is a good reason to believe asianamericans are underrepresented, perhaps by design, perhaps in the way jews were underrepresented by the ivy leagues. Susan there is this dichotomy of the court versus society. I want to put a 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 the president himself 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. As a law professor, i have taught in situations where there are no minorities in the classroom. How do you teach the bernie goetz case . It is tough. The idea that diversity matters, 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 being used as a justification for helping out folks 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. You have schools that do not take the view neal did, that 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 workingclass background, i was able to receive two graduate degrees. Need more justices like sort of my are. That is absolutely right. That is argument on behalf of affirmative action. You heard it from the caller who 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 schools than were 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 universities, i think is so 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 new york city, you are on. Thank you, it is a high honor 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 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, 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. Susan jude asks on twitter, when does affirmative action end . One justice said, maybe in a quartercentury. It ends when the rationale for it goes away. The university of texas just put to the Supreme Court a couple years ago saying, not now. Right now, we really need it. In california, there was the 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. Justice powell said, sometimes the best decision is a compromise decision, not the extreme on either side. And our country is so divided right now, i think Justice Powells 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, this is our final case for the season. A couple of thank yous, if you will allow me. Tony moro who wrote the companion 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. There you see our team, the technical and editorial team. Our studio head, and all that worked with him on the technical side. Nate hearst leading. Answering all your phone calls this season. Thanks to everyone for your help in putting this together and to our great viewers for all of your questions. Thank you for being with us this season. music up next. Brown versus department of education and tinker versus des moines during the vietnam war. The National Constitution center in philadelphia hosted this hourlong event. My name is vince stango. Im he here at the National Constitution center and i am so delighted to welcome you to this special event. A Panel Discussion on some of the Supreme Courts most significant landmark cases. When the storie w