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AMERICAN MORNING

Analysis of Affirmative Action Rulings

Aired June 24, 2003 - 07:15   ET

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

DARYN KAGAN, CNN ANCHOR: The affirmative action rulings yesterday by the U.S. Supreme Court were its first on the controversial subject in 25 years, but the decisions could lead to more challenges ahead and pose many questions right now.
Our legal analyst, Jeffrey Toobin, is with us. Good morning.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Howdy.

KAGAN: We need you to decipher kind of what this all means. First of all, it's a little bit confusing how it came down. With the University of Michigan case, they said the law school, you're kind of doing it OK, but the undergraduate admissions, you're really not doing it OK.

TOOBIN: That's why you have this unique situation yesterday where everybody was declaring victory on both sides of the issue, because the most important part of the ruling is that the idea of affirmative action is preserved, that using race in admissions is permissible under some circumstances.

There had been many suggestions, including some lower court rulings that said, no, you can't use race at all, that's a violation of the Constitution. Clearly, those judges were wrong. Race may be included. How you include race, how the mechanics of how it works, that is very much up for grabs still.

KAGAN: It seems like with the law school the justices were impressed because they were looking at the individual. With the undergraduate system, there was this point system where you automatically got a certain amount of points just for being a racial minority.

TOOBIN: Clearly, the justices' reaction showed their discomfort with what they were doing. They weren't entirely sure. They wanted what they called a holistic evaluation of each candidate. Race can be one factor, but it can't be applied mechanically. That's one thing when you have a 300-member class of law school. When you have 25,000 students applying to the freshman year at the University of Michigan, it's going to be tough to make those individual assessments. That's why they used a point system, so they didn't have to hire hundreds of admission officers. Maybe they will have to do that now.

KAGAN: So, they're basically saying, don't do it that way, but they didn't exactly lay out exactly how they're supposed to do it, that it's for them to go figure out. TOOBIN: That's what the Supreme Court does. They don't worry about the details. They say, just follow us and we'll tell you later whether you're right or wrong.

KAGAN: Like a do it or don't. They told them the don't.

TOOBIN: The don't, right.

KAGAN: So, what's the message, first of all, for schools and universities across the country?

TOOBIN: Well, it probably means no wholesale dramatic changes around the country, because many, many schools use race as a factor, and they'll still be able to do that. What they will not be able to do is use these formulas. Many schools do use point formulas, and some give specific numbers of points for being a racial minority. Those will have to go, clearly. How they substitute for them, how they do this individual assessment that the Supreme Court required, there will be many conferences and much, much work by lawyers in the months ahead.

KAGAN: Let's look ahead here. Justice Scalia said, you know what? The way we've written this, you're just asking for more lawsuits.

TOOBIN: And you know what? I think he's absolutely right. I mean, you know, there are worse things in the world than more lawsuits, but he...

KAGAN: (UNINTELLIGIBLE) for the world of lawyers that...

(CROSSTALK)

TOOBIN: That's right. But he is absolutely right, that this was not a bell-like clarity. Take a decision like Miranda. Everybody knows Miranda. It says, when you get arrested, you have to be given those warnings. You don't need a lawyer to interpret it. It's very simple. This is a very different kind of opinion where it's hard to know exactly what's OK and what's not OK from the Supreme Court.

KAGAN: I thought also interesting was that Justice O'Connor in writing the majority opinion, she was holding up the idea of affirmative action, yet she was saying, but you know what? In 25 years, you won't need affirmative action. So, is that putting like a timeline on this decision?

TOOBIN: You know, I have never read anything like that in a Supreme Court opinion, because they evaluate the Constitution, which was, you know, written in 1787, and that's what it says. It's hard to imagine that the Constitution says something today, 300 months from now, as Clarence Thomas said, it will mean something else.

But very specific instruction in Justice O'Connor's opinion, affirmative action cannot continue in this country for more than another 25 years.

KAGAN: so, if nothing else, you are asking for the question to come up again in 25 years.

TOOBIN: And you can be sure it will take less than 25 years, more like 25 days.

KAGAN: Absolutely. Jeff Toobin, thank you so much for that.

TOOBIN: All right.

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