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Early Edition

The Ashcroft Factor: Larry Marshall and Gary Orfield Debate Qualifications for U.S. Attorney General

Aired January 15, 2001 - 8:20 a.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

CAROL LIN, CNN ANCHOR: Even though Ashcroft supporters say race is not an issue in Judge Ronny White's nomination, there are other cases involving race and John Ashcroft, and among them desegregation suits in St. Louis and Kansas City, while Ashcroft was Missouri's attorney general in the 1980s.

Larry Marshall was an assistant to Ashcroft for nearly five years during that time, and Gary Orfield of Harvard University was an expert witness in the suits. Mr. Marshall joins us now from Columbia, Missouri, and Mr. Orfield from Boston.

Good morning to both of you.

GARY ORFIELD, HARVARD UNIVERSITY: Good morning, Carol.

LARRY MARSHALL, FORMER ASST. MO ATTY. GEN.: Good morning.

LIN: Let me begin with you, Mr. Orfield. Could you give us -- bring us up to date very quickly on what exactly the desegregation suit was about?

ORFIELD: The desegregation suit was about a finding by the federal courts that the state of Missouri had violated the rights of African-American students for many generation, and that they have never complied with the Brown decision to disestablish their separate schools, and it ordered the state government to help with upgrading very deteriorated schools in St. Louis and to provide opportunities for magnet schools in the city, and for a voluntary transfer program with the suburbs.

There were a number of court orders and sweeping findings and, basically, the problem was that the attorney general constantly created barriers, he forbade state officials to collaborate in developing a positive educational plan. He appealed time after time. He never cooperated with development of a positive effort to remedy these historic violations, and he was a principal problem in the whole implementation process.

LIN: Well, let me get reaction from Larry Marshall. You worked very closely with John Ashcroft during this period, was he that activist in his opinions regarding what should happen with desegregation? MARSHALL: Well, Carol, let's -- I think you have to start from the beginning and understand that when this case started the state of Missouri was not a defendant, was not a party, nor were any state officials. When it was first decided it was decided that there was no segregated conditions caused by government action.

ORFIELD: That was overturned.

MARSHALL: I appreciate that, Gary, but if you'd let me finish...

ORFIELD: No, I'm sorry.

MARSHALL: ... I would explain what I'm trying to say.

ORFIELD: OK, sure.

MARSHALL: So, initially, the state of Missouri has sound legal basis for opposing what was going on. There had never been any allegations made against the state; no allegations made against any state officials. There were no findings of an interdistrict violation between city and county. There were no findings, therefore, that would justify what is called "an interdistrict remedy" as required by the Supreme Court decision in Milliken (ph). So, there was sound basis for...

LIN: So, did...

MARSHALL: ... General Ashcroft and the state of Missouri opposing what was going on initially.

LIN: All right, Mr. Marshall, because what I don't want to do here is relive the desegregation case. What I want to do is try to put John Ashcroft in the context of that case. So, in the context of that case, as he made his arguments, did he make his arguments based on what, state's rights? or was it really an issue of race?

MARSHALL: It was neither of those. First of all, it was a legal basis; namely, that we had no liability, that they had not found us liable initially, and therefore we should not have to pay for it.

The second basis for it was the financial aspect of it. You have to understand something, Carol, and time has shown this out, over the last 15 years in St. Louis and Kansas City, the state has paid some $350 million in those two desegregation plans. And I would suggest to you and Dr. Orfield, I'm sure, would agree with this, the city of St. Louis is still predominantly black, the city of Kansas City is still predominantly black or African-American.

ORFIELD: I hope I have a chance to answer this.

LIN: Mr. Orfield, go ahead.

ORFIELD: Yes, basically, what Mr. Marshall says is true about the very beginning of this case, but after the state's responsibility was very clearly established, and the court of appeals found that, and it was appealed many times to the United States Supreme Court, he continuously obstructed it. He did not allow the educators in the state -- our commissioner's office to collaborate with the development of a plan. He produced a situation in which just five years later the state was found to still have done nothing to comply...

LIN: Mr. Orfield?

ORFIELD: ... with its responsibility under the Constitution.

LIN: Mr. Orfield?

ORFIELD: Yes.

LIN: So, do you think that John Ashcroft is a racist?

ORFIELD: I do not judge his personal beliefs, but his behavior as attorney general was as if Janet Reno had responded to the Supreme Court decision in Florida by saying it was a terrible court, the judges were trying to run politics, and had filed many appeals and obstructed the enforcement, and ordered officials not to comply, rather than do what she did as attorney general.

He was a very activist opponent, and he used this in his political campaigns for governor, senator...

LIN: Mr. Marshall?

ORFIELD: ... I think that it would...

LIN: I'm sorry, Mr. Orfield, hang on one second.

ORFIELD: All right, yes.

LIN: Let me...

MARSHALL: Carol?

LIN: ... get your reaction to this specifically, though, and part of the context of John Ashcroft is that you not only hear a lot about this argument over his role in desegregation and whether he can separate his job from his personal or political beliefs, but according to the president of the People for the American Way, he was looking at Ashcroft's total desegregation record, and he says that it shows a man who more than a quarter of century after Brown versus Board of Education used the resources of his offices in a divisive single- minded fight to obstruct even voluntary desegregation in St. Louis. Is -- Does this sound like a man who is capable of separating his political views from the job at hand? Can he enforce the law even if it opposes what he thinks personally?

MARSHALL: Well, Carol, let me say this. I left as a special assistant attorney general in 1984, was not involved after that point in time. But what I have to tell you is that he was the attorney general for the entire state of Missouri. It was his obligation to protect the interests of the entire state, to protect their interest in terms of the tax dollars that were being spent. I -- during my time that I worked for him directly, he never at any time gave me any responsibilities or orders that I felt were improper, were illegal, were racially motivated, were of any kind of racial discriminatory statement. Had he done so, Carol, I would have resigned, but he did not do so.

LIN: So, Mr. Orfield, then, taking a look at the body of evidence as it's been presented this morning, I mean, do you believe that John Ashcroft can at least separate his duties as U.S. attorney general aside from his political constituencies?

ORFIELD: I've been involved in more than 30 class-action civil rights cases around the country. I have never seen a state official so recalcitrant and so continuously attacking the courts and putting barriers to implementation.

I do not -- I believe that he thinks that he should enforce those decisions that he agrees with. Under the Missouri Constitution, his first obligation, under his oath of office, was to uphold the United States Constitution. We're not a confederacy. We're a union. And he did not respond to clear directives under the courts of the federal government. He put barriers. He created obstacles. He constantly harassed and criticized those courts. I think it's a very dismal record for people who want to have the rights of women and minorities and handicapped and others enforced by the federal government.

LIN: Well, we shall see. His nomination hearings begin tomorrow. Thank you very much, Gary Orfield and Larry Marshall for joining us this morning. Much to talk about, never enough time. Thank you.

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