June 23: Who Wins in the University of Michigan Affirmative Action Decision?

This is a partial transcript of Special Report with Brit Hume, June 23, that has been edited for clarity. Click here to order the complete transcript.

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TERRY PELL, PRESIDENT, INDIVIDUAL RIGHTS CTR PRESS: I think today's split decision raises the bar higher. It makes it more difficult for schools to use race. It's true that the laws -- or the Court upheld the law school system. But at the end of the day, that may be cold comfort for schools.

MARY SUE COLEMAN, UNIVERSITY OF MICHIGAN PRESS: The most important thing they've said is diversity is a compelling interest. You can use affirmative action and that's a victory for all of our education.


BRIT HUME, HOST: When the Supreme Court (search) speaks and both sides in the dispute claim victory, as you just saw there, who are you going to call? Our favorite law professor, that's who. Jonathan Turley of George Washington University, where he teaches constitutional law, among other subjects.

Welcome back Jonathan.


HUME: Good to have you back.

So what happened here? Who won?

TURLEY: Ha! Now there's a good question. I think that both sides literally could claim victory. But for the pro-affirmative action side, I would not be thrilled...

HUME: Really?

TURLEY: ... about this decision. The reason is that, first of all, you've got two decisions. One of them they rejected an affirmative action (search)...

HUME: That's the undergraduate program.

TURLEY: ... for the undergraduate. That's right. With the law school, it was the slimmest of majorities, 5-4. And there is a couple of things that would concern me. One is of those five; two of those Justices are expected to retire soon, Justice O'Connor and Justice Stevens. They're certainly ripe for retirement. The second thing is the way the opinion was written; it could be very easily nullified if the membership of the Court changes. O'Connor takes not; I would say leaps, but certainly brushes by a number of difficult questions.

HUME: Such as?

TURLEY: Well, for example, in the past, the Court has said if we approve affirmative action, we want a duration; we want a period of time. You can't just do this indefinitely. And she acknowledges that Michigan has not given a clear duration here and she's just simply saying we trust Michigan that they're going to do this only for the time that it has to be done. And I expect in 25 years it won't be necessary anymore. Well, the dissent go after her on that and say what type of standard is that?

 But also the test of strict scrutiny usually will kill...

HUME: Now, let me just ask you about this. The test of strict scrutiny, that comes from an earlier decision, which the Court basically said that any use of race or race preferences of any kind would be subject to what they call "strict scrutiny" by the Court. In other words, they would have to show that it was narrow, necessary, and so forth.

TURLEY: That's absolutely right. I mean, in our constitutional system, race and religion are like the third rail. You really can't survive it unless you can show that you narrowly tailored something to satisfy compelling state interests. Now it's true, for those people supporting affirmative action, it is a great victory for a majority to diversity alone is a compelling interest.

HUME: In other words, the achievement of a diverse student bodies. This is not for the purposes of remedying past discrimination or undoing injustice. This is for the educational experience for the students who get to be among people of all kinds.

TURLEY: That's right.

HUME: Let me ask you a question about that. If that is the goal and if that is the principle on which affirmative action of this kind or preferences can be upheld, then why would there ever be a time limit on it? I mean, if diversify is a good idea now, why would it not be 25 years from now

TURLEY: You actually when you read the opinion, you actually flip back and go, whoa; I mean where did the 25 years come from? What is the basis for that? And also, as you note, diversity in 25 years, presumably will be as important. I think what O'Connor is suggesting is that at that point, that African Americans particularly will have made so much strides in this area, that this type of system will not be required.

HUME: So, in other words, that African Americans will be such -- so widespread a part of our communities everywhere, that this won't be necessary for schools.

TURLEY: Right. But also one of the things that she says here, which is quite significant, is that you do not have to be remedying past discrimination, as you noted, in other words to use affirmative action. Those are very bold steps that the dissent clearly is not willing to take. Now remember, this is a 5-4 split. If the Court membership changes slightly...

HUME: What was prohibited?

TURLEY: In terms of -- oh, in terms of the undergraduate. Now, that I think is why I think the undergraduate case is more important than the law school case. Most of us doubted there was a majority that would say that it is not a compelling state interest. You can never use race. The question is weight. Now in that undergraduate case, the weight was 20 points out of 150. That is modest in comparison to many existing programs and I think that is what people are going to focus on.

HUME: How does that 20 points compare with other elements in terms of weight given.

TURLEY: Well, it is actually more important than some academic, you know, elements. For example, it's a 20 points is more than the points you get for the SAT

HUME: Wow.

TURLEY: So, it is heavy in that sense. But it is actually not as heavy as some other programs. So what's going to happen is people are going to look at that undergraduate case and there's going to be a flood of litigation. But where O'Connor's decision was sort of general, and was criticized for that sense, in terms of its analysis, the Rehnquist decision is very specific.

HUME: This is the one outlawing the...

TURLEY: Right. On the undergraduate.

HUME: ... the 20-point scheme.

TURLEY: That's right.

HUME: So does what emerges here you can use race as an important factor, even, but you can't set up some kind of rigid formula, or dare I say, a quota.

TURLEY: Right. Rehnquist is saying that when you give 20 points out of 150 in a case like this, it is effectively a quota. Well, that means that we're going to have all these new, you know cases coming up, saying this is as much weight as you rejected in the undergraduate case.

Now, by the time these cases come back up, we may have a new court. There's three Justices that could very well retire, that it could very well announce it this week. But by the time these cases come back, there may be a new majority and that law school case may no longer be good law.

HUME: You anticipate a flood of litigation. Who would be the litigators here? It would be people who feel that they have been discriminated against because they're not black? Is that the idea? Or...

TURLEY: Well, it would be anyone who is on the other side of an affirmative action program, who can say, look, Michigan gave 20 points out of 150. My school gives, you know, 15 points out of 120. And so you're going to have all these cases saying...

HUME: Are there a lot of schemes around that do numbers?

TURLEY: There is endless number of different schemes of how you put importance.

HUME: That use numbers, though?

TURLEY: That use numbers. But even if -- I think you're right. I think the first thing the schools will do is that they're going to get rid of all numbers. And they're going to go to a more undefined standard, showing preference, but not putting numbers on them.

HUME: Oh, boy.

TURLEY: But that may not be -- the point is, these cases resolve nothing. In Bakke Court failed and created years of uncertainty and confusion.

HUME: And this doesn't resolve it?

TURLEY: And it doesn't resolve it here. They've brought more confusion to the confusion. But what I think is clear, is that with Bakke, we had six decisions that had different rationales. We now have two camps and we're all going to wait for the next review of this decision.

HUME: Wow. Jonathan Turley, thank you very much.

TURLEY: Thanks Brit.

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