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Supreme Court Rules on Affirmative Action; Two More Ferry Crew Members Arrested; Activity Detected at North Korean Nuclear Site; Avalanche Threatens Everest Climbing Season; Netflix Set to Raise Prices for New Subscribers

Aired April 22, 2014 - 10:30   ET

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

CAROL COSTELLO, CNN ANCHOR: This just in to CNN from the U.S. Supreme Court. By a vote of 6-2 the Justices have upheld a controversial Michigan law. That law bans affirmative action in college admissions.

Let's take a closer look and turn to Gloria Browne-Marshall, a constitutional law professor and Jonathan Turley, a professor of law at George Washington University. Welcome to both of you.

First of all, Jonathan, let's start with you. Is this ruling a surprise in any way?

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY (via telephone): It was not a surprise for me. We actually taught this case in my Supreme Court class. And actually the class voted on predicting this outcome.

It's a little bit of a surprise to see how heavily outweighed it is. You know 6-2 is quite a hefty ruling in favor of this law. And what it does is it really broadens the scope of some of the earlier rulings and narrows the scope of some rulings that were relied upon those who would like to see more affirmative action-type of plan.

So what happened in this case is that after the court ruled on the famous Gratz and Grutter case on affirmative action. The citizens of Michigan voted to basically ban the use of race and other criteria in the selection of students. That was challenged as a type of political bar to dealing with race issues and attaining more importantly diversity in schools.

And what you hear today is six justices saying that's not unconstitutional; that citizens in fact do have the right to do this. And it's going to open up the door, I think, to many states following suit. Many have already done so have already done so but I expect many others will now look at this same approach.

COSTELLO: Several other states have similar bans right now. And basically, Gloria, what the U.S. Supreme Court ruled is that Michigan had the right to change its state Constitution and eliminate affirmative action. I kind of -- I found it interesting how Justice Anthony Kennedy put it. He said "Voters chose to eliminate racial preferences because they deem them unwise." What did he mean by that?

GLORIA BROWNE-MARSHALL, CONSTITUTIONAL LAW PROFESSOR (via telephone): Well, I'm not quite sure how he's going to justify the majority rule on affirmative action and yet write the opinion in the cases involving marriage equality. And say, basically, because of a procedural issue, that they couldn't get to the issue of whether or not the proposition vote on by the people which would have banned same-sex marriage was constitutional. Remember, that was thrown out for a procedural reason.

So excuse me -- so now we're in a situation in which if the majority rules how is that going to affect any minority group, be those people of color, be those people of groups of gay, or of a particular religious belief. I mean it's opened a Pandora's Box on the majority ruling on the rights of minorities be they (inaudible) in the state Constitution.

So the procedure to amend the state Constitution is what their issue. The reason right now what they want to accomplish by amending that state Constitution is the major controversy in this case, it's affirmative action in the future it may be anything.

COSTELLO: Jonathan, do you agree with that?

TURLEY: Well, I do think that there's a distinction that can be drawn with same-sex marriage. I think the way that Kennedy and others are viewing this is that the citizens said they didn't want any immutable characteristics to be used in terms of the selection of students. And they view that as a neutral law in the sense of making education available and the opportunities available to everyone.

Now, there are a lot of very good reasons why you can object to that. There are many, including people within the Michigan educational system that are saying that this is really going to gut the effort to get diversity in classes.

But I do think that they can distinguish from same-sex marriage. I do think, though, that the Supreme Court has given opponents to the use of these criteria a very clear avenue to take the matter into their own hands. You know what I think is such a game-changer here is that in the past, all roads have led to the Supreme Court. The Supreme Court would make these decisions that were so controversial.

This opinion is suggesting that voters actually can make this decision. That it is within their constitutional authority to say, we do not want immutable characteristics, whether race, or gender, or other issues, to be used in the selection of students for admission.

COSTELLO: Interesting. So, Gloria, I hear you, so that I can really see what you're talking about now. The voters could -- I don't know, they could vote down so many other things that they don't particularly like, right? Which they do anyway?

BROWNE-MARSHALL: Yes, I mean if you think about any minority groups. And I'm disappointed with women and I understand what the Grutter case and the court case was from last year. That we have a number of women -- white women who are saying we should be in these particular positions and we're not being allowed to be in these particular positions. But you know this is also the 50th anniversary of the 1964 Civil Rights Act, which was not just for people of color and race. It was for all nationalities and women who were protect under Title Nine under the Civil Rights Act. And it seems as though there's a conflict now between this majority 51 percent are women and who are white and these people of color, and we're all trying to squeeze through the same little crack in the opportunity door.

And the Supreme Court is basically saying well, minority groups do have to kind of step back. And so I think that you know if the people have the right, the majority rules, it could include any people. Any -- any as Jonathan pointed out any discernible characteristic that the people may believe should be not taken into account in deciding cool today and who know what it might be tomorrow. I think the concern is that the Supreme Court really act at that last resort for people of minority groups. And it is interesting that it's a 6-2 decision.

COSTELLO: It is. And we're going to talk much more about this throughout the day. Gloria the about much more. Thank you for answering my inartful question so well. I appreciate that Gloria Browne-Marshall, Jonathan Turley. Thanks to both of you.

I'll be right back.

(COMMERCIAL BREAK)

COSTELLO: This morning, two more crew members have been arrested in connection with that deadly ferry crash in South Korea. In all, nine crew members including the captain are in police custody. And the search does continue for the nearly 200 people still missing. So far, divers have found more than 100 bodies, but as you can see, visibility under water is barely at arm's length.

(BEGIN VIDEO CLIP)

CADE COURTLY, FORMER NAVY SEAL: Now, that the ship is lying there on the bottom of the sea, you have all that sediment, so where the visibility was already very challenging when the ship was sort of floating, it's probably been reduced three times so instead of two feet of visibility more like about four to six inches of visibility.

(END VIDEO CLIP)

COSTELLO: Authorities stress this is still a search and rescue effort even though no survivors have been found since last week. Actually, we're told divers are still holding out hope. They're determined to find a miracle. But it's dangerous for them, too.

Chad Myers has more on that. Good morning, Chad.

CHAD MYERS, AMS METEOROLOGIST: Good morning Carol. You know I've been on a lot of drift dives in my life -- one to two knots. But the water that runs through this channel is six to seven knots which is about six or seven miles per hour. If you get caught in that, that would be like an under toe. We would consider that a rip current in America just sending you right out to the ocean. So all of these divers have to hold on to rope just getting down to the ship. They get on the lines, they go down the lines, they get into the ship and they search around literally with their hands.

Think about this, around the coast of Korea, we have a knot current of about three knots. And that's great. But in this channel, it's like putting your thumb on the hose when you were a kid to help your dad wash the car. You put your thumb on the end of the hose and the water comes out a lot faster. That's what's happening here. This channel, this funneling effect is creating these dangerous rip currents. And these are currents one way or the other whether it's a slack tide whether it's a high tide. The tides move up and down, Carol, ten feet in one day. Twice in one day so high/low, high/low, its ten feet -- it takes a lot of power, a lot of speed, a lot of water to get those tides to move that much. And that's what these divers are dealing with.

Now it's on the bottom of the ocean. It's 100 down or so. But that's irrelevant it's dark almost all the time because lights doesn't get down there. They're doing this with flashlights. The flashlights as you push them down and turn them on just sparkle things back in your eye eyes.

This is what the current looks like. This is right through the channel about two miles wide. There was truly nothing to hit here. We know that this didn't hit anything. That right there that is an island that certainly they missed but look at the eddies -- how that swirling comes across when the -- when the flow of the water moves one way and it turns around and moves the other way.

We know it's a dangerous current there for these divers and they are putting themselves in danger trying to get to these young men and women in there. And we certainly hope that there's enough of an air pocket in there for anybody to be found. It's getting late in that day now because obviously, all the breathing takes out the oxygen puts in carbon dioxide this would have to be a pretty big air pocket now for anybody to still survive.

COSTELLO: Chad Myers thanks so much.

MYERS: Sure Carol.

COSTELLO: When that ferry crashed it was the third mate who was actually at the controls. But where was the Captain? It turns out he was tucked away in his cabin. Of course, that's not unusual for the captain to hand over controls at night. And this particular waterway, though, some say the captain should have always been in command.

(BEGIN VIDEO CLIP)

CAPTAIN JAMES STAPLES, MARITIME SAFETY CONSULTANT: It's not unusual for the third mate to be by themselves. But usually not in a situation where it's a critical area where there's a lot of traffic, a lot of current. That's where you want to be as captain up there. Just to make sure in case anything did go wrong, you were had there to supervise it and to oversee anything any problems you have. UNIDENTIFIED MALE: The Captain may have violated Korean law with respect to the particular area where they were navigating. Because of the proximity of the islands to the channel that they were -- that were navigating through the captain is obliged to be at the bridge. And he wasn't. And there's a reason for his having to be there. And that is because of the relative narrowness of the channel.

(END VIDEO CLIP)

COSTELLO: The captain of the South Korean ferry is not the first to bail on his ship. But many captains have given their own lives to save others.

Randi Kaye traces some of those heroes.

(BEGIN VIDEO CLIP)

RANDI KAYE, CNN CORRESPONDENT: He is blamed for one of the worst maritime disasters of all time. But to some, Captain E.J. Smith is a hero. He had already turned in for the night aboard the "Titanic" when his crew told him they hid an iceberg. It was April 1912 and the "Titanic" was on its maiden voyage. When the ship starts to sink of the coast of Canada, Captain Smith order the crew to prepare lifeboats.

UNIDENTIFIED FEMALE: They gave an order all passengers put on your life preservers. Get up on the boat deck leave everything and they said it was a precautionary measure.

KAYE: Captain Smith ordered women and children be evacuated first and helped save more than 700 people. He was on the bridge as the ship disappeared lost among the 1,500 people who perished.

Decades later in 1956, an Italian vessel, the Andrea Doria, collided with another ship off Nantucket. Captain Piero Calamai had made a serious of errors in dense fog and heavy traffic. Yet when the Andrea Doria began to sink the captain tried to make sure all the passengers and crew were evacuated. 46 people died. He wanted to go down with the ship and pay for his mistakes but his officers talked him out of it. The captain was the last person off and never commanded another vessel again.

The tale of another Italian ship ended very differently. In 2012, when the Costa Concordia ran aground off the coast of Italy, 32 people died. Captain Francesco Schettino got off the ship with hundreds still on board. He says he fell and tripped into a lifeboat.

Listen as the Coast Guard ordered him to return to his ship.

Listen.

UNIDENTIFIED MALE: Get on board the ship and you tell me how many people are on board and what do they have. Clear?

Look Schettino. I will make sure you go through a lot of trouble. Get on board, damn it. KAYE: Captain Schettino is currently on trial. Among the charges he's facing, abandoning ship with passengers still on board, manslaughter and causing maritime disaster.

We did some checking and found there isn't any international maritime law that says a captain must stay on the ship. Many countries like South Korea have their own law or follow the Safety of Life at Sea Treaty adopted after the Titanic sank. It doesn't require that a captain stay on board but it does say the captain is responsible for the vessel and his passengers.

That same treaty also says passengers should be allowed to evacuate within 30 minutes. Remember, the Sewol ferry took more than two hours to sink off South Korea, but the passengers were told to stay in place -- a warning that may prove to have cost hundreds of lives.

Randi Kaye, CNN, New York.

(END VIDEOTAPE)

COSTELLO: Coming up in the NEWSROOM, growing fears North Korea may be in the final stages of planning a nuclear test. Why many experts are now sounding the alarm.

(COMMERCIAL BREAK)

COSTELLO: New fears this morning, North Korea may be ramping up its nuclear capabilities after South Korea detected activity at one of its neighbors main testing sites. Experts are keeping an eye on whether North Korea is preparing an underground tunnel there. That could mean a nuclear test is imminent. This alarming news comes as President Obama prepares for an overseas trip.

CNN's Paula Hancocks is in Seoul.

PAULA HANCOCKS, CNN CORRESPONDENT: Carol, there's stepped up activity at the Punggye-ri site in the north east of North Korea. This is where they carried out their previous underground nuclear test back in February 2013.

This is according to the South Korean defense ministry. They basically tell CNN all that North Korea has to do is make the political decision to carry out a fourth nuclear test. Now, we understand that they have yet to dig the entrance to this underground tunnel and then to seal it up. But we're being told that that would not take very long.

Now, just last month, North Korea said that it may carry out a new kind of nuclear test if it felt it was pushed to do so by the United States. Now, experts say that this new kind of nuclear test may in fact be using uranium rather plutonium. Now some experts say this may also just maybe a bluff so that North Korea can try and extract some concessions from the United States.

The timing's certainly interesting, North Korea -- U.S. President Barack Obama is heading to the region he'll be here in Seoul on Friday. And North Korea's foreign ministry has already mentioned that trip describing it quote "a reactionary and dangerous one" -- Carol.

COSTELLO: Paula Hancocks reporting.

The deadly avalanche on Mount Everest has left a community divided. Some believe expeditions should be canceled in respect of the victims. Others argued that the Sherpas -- these guides need money to survive and that the guided tours should continue.

CNN's Amara Walker reports.

(BEGIN VIDEOTAPE)

AMARA WALKER, CNN CORRESPONDENT: Buddhist prayers and music in the Nepali capital of Katmandu as families of the Sherpas killed on Friday's avalanche on Mount Everest mourn the loss of their loved ones.

The bodies of 13 local Sherpa guides have been pulled from the snow. Three Sherpas still are missing. The avalanche was the single deadliest accident in the mountain's history.

VERN TEJAS, ALPINE ASCENTS INTERNATIONAL: I believe this is going to have a great effect on the families. They've lost their breadwinners. They've lost their husbands, their fathers, their sons. And it's going to have very serious effect in the community, as well as in the family -- great loss for everyone.

WALKER: Just days away from the start of the busiest climbing season, U.S.-based Alpine Ascents International which lost five Sherpas in the accident has canceled its expedition.

The Discovery Channel had planned a live broadcast of the first winged jumpsuit flight off Everest. That's also canceled. Now it's unclear if anyone will scale the world's highest peak this year.

Some Sherpas are calling for the mountain to be closed in respect for the dead. Others are threatening a boycott to protest poor pay.

CHHEDAR SHERPA, NEPALI GUIDE (through translator): At the moment, the view of all Sherpas is that we should mourn for Everest. Some climbers will be too afraid to continue their ascent. But for others they will feel compelled to go on.

CHHRING SHERPA, NEPALI GUIDE (through translator): Some Sherpas are of the opinion that we should return to work. Others while not being explicit will feel compelled to return mainly for the money because they don't have any other employment.

WALKER: Sherpa guides can make up to $6,000 a year while Nepal's government stands to make about $3 million in royalties if and when climbing resumes. Those who want to make the ascent now have to decide if the risk is worth the reward.

Amara Walker, CNN.

(END VIDEOTAPE) COSTELLO: Still to come in the NEWSROOM, get ready for a Netflix price hike. The company is preparing to up monthly subscription fees. We'll have all the details for you next.

(COMMERCIAL BREAK)

COSTELLO: You knew it was coming. Netflix prices are about to go up. The company says it plans to raise monthly subscriptions by $1 or $2 within the next few months. Don't worry if you're already a member, the price hike will only affect new customers for now.

Doesn't that sound ominous?

Let's bring in CNN money correspondent, Zain Asher from the New York Stock Exchange. Why is Netflix doing this?

ZAIN ASHER, CNN MONEY CORRESPONDENT: All right Carol, well Netflix is saying that they want to invest more into new shows like "Orange is the New Black", for example a lot of people seem to love. And if you're just curious about "Orange is the New Black" or you're curious about "House of Cards" and you're thinking about signing up you might want to do it sooner rather than later because those price hikes are coming in the next few months.

Now U.S. subscribers currently pay roughly around $8 a month and Netflix says that if you're an existing customer, you don't necessarily have to worry about price increases anytime soon. They're going to stay the same for a generous period of time.

But, you know, with these new price hikes, even though it's only $1 to $2 a month, the question is, is it really worth it? That depends on who your Internet service provider is. Believe it or not, some providers are a lot slower or a lot faster than others in terms of delivering content. And Netflix is not shy at all about calling companies out.

For example, Netflix says that Cablevision Optimum is number one for speed. Comcast is actually number five, which is actually a major improvement because it jumped six places from January through to March basically because Netflix agreed to pay more money for more high speed connection. And that deal basically bumped Netflix seed of Comcast by 65 percent. Netflix also singled out AT&T fiber optics as being particularly slow -- Carol.

COSTELLO: Now we know. Zain Asher, thanks so much. We appreciate it.

Thank you for joining me today. I'm Carol Costello.

"@THIS HOUR WITH BERMAN AND MICHAELA" starts now.

MICHAELA PEREIRA, CNN HOST: How did he do it? He says he hopped a fence at the airport to get to a plane. But how could a teen survive flying from California to Hawaii in a jumbo jet wheel well?

JOHN BERMAN, CNN HOST: It is an almost impossible mission. Divers swim 100 feet down into the icy ocean off South Korea, looking for survivors of that ferry disaster. and once they get there, they can hardly see a thing.