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American Morning

Minority Admissions at U. Michigan Law, Controversial Florida Lake

Aired May 15, 2002 - 09:40   ET

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

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
PAULA ZAHN, CNN ANCHOR: No Cafferty file today. Jack's off, so we thought we would ask CNN's legal analyst Jeffrey Toobin to step in. So we are going to call it the Toobin File.

You like that? Does that work for you.

JEFFREY TOOBIN, CNN'S LEGAL ANALYST: Toobin File -- works for me.

ZAHN: So you are pretty interested in what the federal appeals court did, aren't you?

Jeff, yesterday, in what could become a test case.

TOOBIN: Huge case. This has been kicking around the courts for awhile. The University of Michigan basically said we believe diversity is an important value, and we're going to give black applicants extra points on their application. They evaluate everybody on a 150-point scale; they say blacks and Hispanics get 20 points extra so that we have diversity. This has been challenged: The courts ruled 5-4 yesterday that this is permissible.

ZAHN: But -- there is a little but in there right? You can't constitute a quota.

TOOBIN: It can't be a quota -- it can't be a quota, but it is explicitly not colorblind: The University of Michigan said we do not have a colorblind program. Three justices on the Supreme Court -- Justices Thomas, Scalia, and Chief Justice Rehnquist -- have said you can't do that -- you just simply cannot do that -- the government must act in a colorblind way. So the question is can they get two more votes to strike down all of this. It's certainly going to the Supreme Court. It will be the biggest affirmative action case since the Bachy case 24 years ago -- huge case.

ZAHN: What does it mean for other colleges across the country?

TOOBIN: Well, it's interesting. It's different in different states now; that's why the Supreme Court has got to deal with this, because Texas struck down this policy. In Texas, you have to have colorblind. They used to have a policy like this where they gave black and Hispanic students a leg up; it's been eliminated. So now you have different systems in different states. That's one reason why the Supreme Court has tried to step in

ZAHN: And the phraseology is very important, because even though these folks say this doesn't constitute some sort of quota, then in fact that's exactly what it is.

TOOBIN: Well, that's what the -- what the plaintiffs, what the people complaining about it, they say come on, you can't claim -- they point out that the percentage of black students has remained almost exactly the same year after year under this program; they say just because you don't call it a quota doesn't mean it isn't a quota, and that's really what's going to be what the Supreme Court is going to decide. But it's going to have huge implications -- professional schools, colleges, even high schools around the country.

ZAHN: We need your legal advice on this one.

TOOBIN: OK.

ZAHN: There is this lake in Tampa, Florida. What's remarkable about this lake is the people who live around it may not be allowed to use it at all, not unless they pay up. Now, you can walk us through details of this; we're going to check out the pictures. A local businessman apparently bought this lake under -- for about, what, $2,000.

TOOBIN: Not an expensive lake, yes.

ZAHN: Two thousand dollars in back taxes.

TOOBIN: Right, and he said it's my lake, you can't even look at it, can't go in it unless you pay me. So he put up a fence around the lake, and one person complained particularly, and he said, OK, you want to complain? You're getting a pink fence. So he put this very ugly fence in front of one person's house, and the question is, you know, what do good fences make? They make even more legal unpleasantness.

ZAHN: So what -- now what do they got him down to? Five thousand dollars?

TOOBIN: You know, it doesn't look like a bad lake, but the prices here, we're talking very low, yes. It's a couple thousand dollars. And it's interesting: In a lot of communities, lakes and oceanfront, you have to open to the public. Connecticut had a big case recently where it said you had to open the Long Island Sound to everybody, you had to be able to walk all along. But this beautiful lake is no deal. Can't do it and you know, I think they're just going to continue fighting.

ZAHN: And then out West you got all those big fights, for fisherman who want the ability to walk to the shore.

(CROSSTALK)

TOOBIN: To walk to the shore. No, I mean it's a goofy story with this stupid little lake. But across the country, you know, waterfront access -- people are pretty angry about that.

ZAHN: Stupid little lake. I don't think you'll be invited there, Jeffrey, any time soon to take a little spin on a dinghy.

TOOBIN: I'm sorry, I apologize -- I apologize. No, it's a very nice lake -- it's a very nice lake, but it's not my lake.

ZAHN: All right. And he doesn't want any part of it.

Jeffrey Toobin, thanks.

TOOBIN: That's right

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