Supreme Court Hands Down Mixed Affirmative Action Ruling

This is a partial transcript of The Big Story With John Gibson, June 23, 2003, that has been edited for clarity. Click here to order the complete transcript.

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JOHN GIBSON, HOST: … These affirmative action rulings, handed down by the U.S. Supreme Court. It is a mixed decision, meaning in one instance admission based on race is OK, but a point system favoring minorities has been declared not fair.

Since we're always fair and balanced here, Ward Connerly, who is chair of the American Civil Rights Institute joins us. And the big question today, Mr. Connerly, is affirmative action reverse discrimination, despite what the Supreme Court says

WARD CONNERLY, AMERICAN CIVIL RIGHTS INSTITUTE.: It's not reverse discrimination. It is discrimination. It's giving diversity as a compelling reason to discriminate.

GIBSON: But in this case, it appears that they said, “Okay, if you have a mechanical system where a black or Hispanic or Asian student gets points and then vaults ahead, that's no good. But if the law school sits down and interviews potential candidates and they say, 'Well, this is a nice, young Hispanic person who's had some disadvantage in the school. We think he's actually brighter than this other kid who's got higher grades. We're going to give him a boost here,'” that that's OK? Do you have a quarrel with that?

CONNERLY: I sure do. If you throw into the equation, “This is a Hispanic student that we think is brighter,” why can't you just say this is a student who is brighter.” Why does the fact that that student is Hispanic or whatever have to enter into the equation?

GIBSON: Well, because they may be looking at lower scores.

CONNERLY: If the score is lower — again, what does it matter if the student is Hispanic or black or purple or whatever.

GIBSON: The Supremes said some subjective judgment is okay here.

CONNERLY: I have no problem with subjective judgment. We make those decisions all time. But when you throw into the equation the person's race, gender or ethnicity, you're then changing that equation. And it's a distinction without a difference. Whether you say, “We're going to give 20 points,” or whether [you say], “We are going to look at the student and recognize that the student is Hispanic and say wink-wink, let's give that student a break.” It's the same thing.

GIBSON: Well, then, do you have any understanding why the Supreme Court seemed to make a decision that opposes another decision? They accepted opposing decisions here.

CONNERLY: I think that the court did tighten the noose on race preferences. “I think that they said, look, the way you've been practicing these policies for the last 30 years, of giving 20 points, that is unconstitutional”…

GIBSON: And this case goes back, what, 20 years now?

CONNERLY: 1975. Or '78, excuse me.

So what this decision does is put a little meat on the bones of how you can use race, not to use it the way the University of Michigan has been doing it, but to use it in a subjective sort of way. It is a minor victory for those of us who want preferences to no longer be applied. It is only a minor victory. It is a great disappointment, a profound disappointment that the court did not outlaw preferences all together.

GIBSON: Well, if the court said to the law school at the University of Michigan, “You can't have the system of allowing some consideration for race,” do you think the law school would have changed much? Do you think it would be less diverse, that there would be fewer black students, there would be fewer Hispanic students, fewer Asian students. Or for that matter, fewer white students?

CONNERLY: Well, if they were going to apply academic standards and they were going to say that race is not going to overcome academic standards, yes, there would be an effect. When you are giving preferences and you take those preferences away, it does not require an awful lot of gray matter to figure out there is going to be a consequence as a result of that.

GIBSON: But is this a victory for people who have complained that white students are being turned away from schools because minority students are getting an advantage? Or, ultimately, is it going to be a victory for white students who may go try to get into the University of California-Berkeley and find that Asian students have 4.5, 4.6, 4.7 grades point averages? And if there wasn't a preference for young white students there wouldn't be any there.

CONNERLY: First of all, there is not going to be any effect on the University of California or the University of Washington.

GIBSON: As an example.

CONNERLY: But as an example, states that do not have ballot initiatives, for example, that outlaw preferences. The effect of this at the law school level, and other levels where they are going to apply preferences, will be for the university to give a slight edge to students who are underrepresented minorities, and not give the same edge to those students who are low-income whites or low-income Asians. The real losers in all this are Asians. They are the ones who are most disadvantaged by these policy right now.

GIBSON: So, what is your next step ? I take it you're not going to give up.

CONNERLY: You better believe we're not going to give up. I think the next step is tomorrow to march into the city clerk's office or the secretary of state's office in the state of Michigan and see what is required to get an initiative on the ballot there. Three quarters of the people of the state of Michigan do not like this decision. And I think they're ready to say, “Well, we may use race, but we choose not to do so and to pass an initiative.”

GIBSON: Wards Connerly, chair of the American Civil Rights Institute. Ward, thanks very much for being here.

CONNERLY: Good to be here, John.

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