Crossfire

Is Affirmative Action Coming to an End?

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

ROBERT NOVAK, CO-HOST: Tonight, taking action against affirmative action. California has done it. So has the state of Washington. Now, a federal judge in Michigan has weighed in.

Is affirmative action coming to an end?

ANNOUNCER: Live from Washington, CROSSFIRE. On the left, Bill Press; on the right, Robert Novak. In the crossfire, in New York, Reverend Al Sharpton, president of the National Action Network, and in Columbus, Ohio, Ken Blackwell, Ohio's Republican secretary of state.

NOVAK: Good evening. Welcome to CROSSFIRE.

In 1997, a 43-year-old woman named Barbara Grutter sought and was denied admission to the University of Michigan Law School. She sued, claiming the law school's affirmative action procedures kept her out because she is white.

This week, Federal Judge Bernard Friedman ruled that the law school's admission policies are unconstitutional because -- quote -- "The focus must be upon the merit of individual applicants, not upon assumed characteristics of racial groups" -- end quote.

President Lee Bollinger called the judge's decision an American tragedy and announced the University of Michigan would appeal.

This and other similar cases are inevitably heading to the Supreme Court, where big issues will be decided. Can reverse racial discrimination be practiced in the interest of racial diversity? If it cannot, will the progress of African-Americans and other minority groups be impeded? And can there be a level playing field without racial preferences?

Robert Reich, former secretary of labor and author of the new book "The Future of Success," is sitting in on the left -- Bob.

ROBERT REICH, CO-HOST: I have a question for Secretary Blackwell. You can clear up a lot of confusion, make it very simple for us. You have advised George W. Bush on affirmative action, and here's the question: What is wrong with taking into consideration -- it's just one factor in deciding the admission of somebody to law school or to university -- just one factor, race? Among many factors. We're not talking about a quota. The Supreme Court has said in the Bakke decision that you can consider race as one of many factors. If you're trying to achieve diversity, what's wrong with it?

KEN BLACKWELL (R), OHIO SECRETARY OF STATE: Absolutely nothing, Bob. The reality is that the president and I and other advisers to the president were looking for some common ground around the whole notion of affirmative action. What we concluded was affirmative access was, one, a George Bush original, but really did speak to an issue that not too many intellectuals in the colleges and universities across this country want to speak to. And that is the fact that affirmative action, as it has become known contemporarally and practiced, really does deal with middle-income African-Americans and Latinos. What the president wanted was something that would speak to leveling the playing field and giving access to lower-income minorities that have been excluded from the American dream.

So those people who were denied access to credit and capital, those who were locked into dysfunctional schools, as well as those who didn't have access to adequate health care, could in fact be given affirmative access through some market-oriented initiatives. First...

REICH: But there's -- there's an inherent contradiction.

BLACKWELL: It's not a contradiction. Essentially what it is it says that affirmative action with lower case levels is as American as apple pie. It is only when you use affirmative action with capital letters where it becomes a means of fixing a quota and using race...

REICH: But Mr. Secretary...

BLACKWELL: ... a sole -- as the sole factor that you then run into problems.

REICH: Mr. Secretary, if I may, I just want you to decode a little bit what you mean by capital letters, lower-case letters. You've advised the Bush administration on affirmative access, you call it, not affirmative action. Would, under the rubric of affirmative access, would this particular scheme that the University of Michigan Law School has used to just use race as one factor to achieve diversity, would that pass muster or is the Bush administration going to come out against this?

BLACKWELL: Well, I don't know what the Bush administration is going to do. I think it would meet our original criteria, because race is not the sole factor and it is not fixed to a particular quota system.

NOVAK: We will be joined by the Reverend Sharpton shortly. But Secretary Blackwell, there is no question that many people in the African-American community -- you know this as well as I do...

BLACKWELL: Right.

NOVAK: ... say that your people cannot make progress if they are competing against whites and Asians on an even basis, that they have to have a little leg up. What do you say to that?

BLACKWELL: I say that's nonsense. I say that there are Americans of all colors who have been denied a level playing field. And let me just make it a bit personal.

My children grew up in a middle-income family. They went to good public schools and fine private schools, and they can compete with anyone. And they shouldn't be given special consideration just because of their race while a youngster in West Virginia who is the son or the daughter of a West Virginia coal miner is denied access to opportunity.

And so I think this notion that the only people who are sitting in the classrooms and law schools and medical schools in this country who are people of color are there because of affirmative access or affirmative action is nonsense.

But there are people of all colors who I think are deserving of a -- of a -- of this sort of enabling action, affirmative action or affirmative access, that we're talking about this evening.

NOVAK: In the Michigan case, Secretary Blackwell, the judge said that 10 percent of the slots for the law school of Michigan had been set aside for racial minorities. Is that a racial quota, which the Supreme Court has said is unconstitutional, or is that just a part of affirmative action?

BLACKWELL: Well, no, I think -- I think once you begin to set fixed numbers you are talking about -- you're talking about a quota. And I can tell you, Bob, as you and I have discussed on other occasions, sometimes you have unintended consequences, that the question is going to become "Who are the preferred minorities?" Are we talking about Cuban-Americans, Mexican-Americans, African- Americans? At what point do you begin to weight "minorityness"? And that's -- that's a problem that you can run into when you have fixed numbers.

REICH: Nobody is arguing, I don't think, for quotas. The real issue is whether race can be one factor.

BLACKWELL: But Bob -- but Bob, I think, you know, Bob Novak just raised the issue that when you start talking about a specific number, 10 percent are assigned to racial minorities, you are talking about a quota.

REICH: Oh, yeah. When you're talking about -- absolutely. A fixed number.

BLACKWELL: Absolutely.

REICH: But will you agree...

BLACKWELL: And again...

REICH: Let's just get to the core issue here.

BLACKWELL: Let's cut to the chase. I said it earlier...

REICH: Cut to the chase.

BLACKWELL: You asked me to be very simple, very straightforward. When race is one factor that is considered, that is a legitimate factor when an educational institution has found educational value in diversity.

You and I both know, I went through -- I was a fellow at the Institute of Politics at the Harvard School of Government. I know that at Harvard they make some decisions based on geographical diversity. I know they have slots that they save for legacies.

You know, if, in fact, you use more than one consideration to achieve an educational value, that is a legitimate public policy that I think should be supported. But when you begin to say that, one, race is the only factor and the race is the only factor that is used to assign to a fixed quota, then you run into a situation...

NOVAK: What do you think...

(CROSSTALK)

I'm sorry.

BLACKWELL: ... that is unconstitutional.

REICH: Well, I just -- you mentioned legacies. You know, I'm always amused that you have a lot of people going to college these days, being admitted, like George W. Bush, in part not because they were such brilliant students, but because their father and grandfather went to Yale. And that is presumably one reason why George W. Bush went to Yale.

If that's the case, why shouldn't you be able to use race as well as rich and influential alumni parents?

BLACKWELL: What you're (UNINTELLIGIBLE) is looking for an opportunity to argue with me, and we're not going to argue on that point.

(LAUGHTER)

NOVAK: Ken Blackwell...

BLACKWELL: The fact -- Bob, let me just -- let me just say to you, what I find that most liberals don't want to address is what George Bush is addressing in his affirmative access, and that is that when you talk about people not having access to capital and credit, not having access to quality education, and when you begin to use remedies like charter schools and vouchers and medical savings accounts that will give people access to these quality of life, you know, activities and services, all of a sudden, people start to say, well, that's not affirmative action. That is affirmative action bigtime. NOVAK: Ken Blackwell, let me ask you a simple question. Bob Reich asked you a simple question. I'll ask you a simple question, too.

I find that Judge Friedman's decision is something that even somebody as dense as I am in legal matters can understand. He writes in English, which many judges don't. What do you think of that decision?

He says that if race is a -- is a factor -- he didn't say the only factor -- he said if race is a factor in selecting who gets into the University of Michigan Law School, it's un -- the process is unconstitutional. What do you think of that?

BLACKWELL: I think he's wrong, Bob. I think that the judge in this same case in December in a different court...

NOVAK: Different judge.

BLACKWELL: ... different judge -- had it about right. When it is narrowly tailored and race is one factor, and it is going against an educational objective like diversity, the question becomes, "Is there real value in a diverse student population?"

NOVAK: What do you think?

BLACKWELL: I think the answer to that -- I think the answer to that question is absolutely yes.

REICH: Of course.

NOVAK: OK. We're going to have to take a break, and when we come back, we're going to go into the question of whether the agitation for racial quotas for African-Americans is based on a perception that they're not up to the job of competing in America.

(COMMERCIAL BREAK)

REICH: Welcome back to CROSSFIRE. I'm Robert Reich, sitting in on Bob Novak's left.

(LAUGHTER)

This week, a federal judge ruled that the University of Michigan Law School cannot give even a slight edge in admitting someone because he or she is a minority. And this is a case that's almost surely to go to the Supreme Court.

So is this the beginning of the end of affirmative action in America?

With us tonight, Ken Blackwell, Ohio secretary of state, who's advised George W. Bush on affirmative action, and soon the Reverend Al Sharpton of the National Action Network.

Let me just pursue one question that we were pursuing a moment ago, Mr. Secretary of State in Ohio.

BLACKWELL: Yes, sir.

REICH: And that has to do with politics. You are a politician. I have been a politician. We know that Ted Olson has been nominated by George W. Bush to be solicitor general of the United States. That nomination is going to be heard by the Senate next Thursday.

Ted Olson was the lawyer who argued on behalf of the white plaintiffs in the University of Texas case that parallels this Michigan case against affirmative action, and he won. He did that free of charge. He did it because he believes, presumably, that there should not be even any scintilla of race in any selection process.

What does this mean to you about the future of affirmative action with regard to the Bush administration?

BLACKWELL: Read my lips, Bob.

(LAUGHTER)

The Bush administration has, I think, a very, very aggressive plan called affirmative access that will, in fact, level the playing field. It is not solely race-based, but it is geared toward making sure that people who have been denied, or who don't have adequate access to health care, quality education in our public schools as well as access to capital and credit, will be given, you know, more access through market-driven solutions.

REICH: I'm reading your lips, Ken. I'm reading your lips, Ken.

BLACKWELL: So what happens -- so what happens, Bob, is that as opposed to just talking about something that benefits the African- American and Latino and Asian middle class, he's talking about leveling the playing field and giving people access to the American dream.

REICH: I can understand that.

BLACKWELL: And I think -- and I think people are going to be very, very responsive to it.

So I feel very good about the Bush administration, because I think he's a leader that has demonstrated that while he doesn't believe in quotas and he doesn't believe in racial preferences, he does believe in even playing fields and giving people access to the American dream.

NOVAK: Reverend Sharpton, welcome.

I'd like to read from you the -- a part of the opinion in the University of Michigan Law School case by Judge Friedman. Quote -- and I'm going to put it up on the screen. Quote: "All racial distinctions are inherently suspect and presumptively invalid. Whatever the solution the law school elects to pursue, it must be race-neutral" -- end quote. Now, isn't that the end of affirmative action in America on the basis of the Constitution of the United States?

AL SHARPTON, PRESIDENT, NATIONAL ACTION NETWORK: Well, no. I think that what it is saying is that America -- there are some Americans that are going to try and act like an uneven playing field is now all right, and that we're going to forget that it is uneven, we're going to forget the history that led to that, and we're going to now call race neutral cementing an imbalance in the social fabric of this country.

The medium income level between blacks and whites is still an over 20 percent gap. You cannot deal with the disparity that has come out of a historic discriminatory policy, which was government- sanctioned, and act like now we're going to call things equal because we're tired of dealing with a situation that we caused in the first place.

NOVAK: But Reverend Sharpton, what you're saying is that a woman like Mrs. Grutter, who filed this suit -- a mother, an older woman -- you're saying that even though her test scores are higher than some African-Americans, she should be kept out of the University of Michigan Law School because she's white? Is that something the American...

SHARPTON: No. That's not at all what I'm saying. No, what I'm saying is that Ms. Grutter and others have to deal with the fact that people that had test scores higher than hers had no right to go to that university for many years because the government had laws barring them. And because the government had those laws in place, the government must remedy that by saying that we have to have a basement on making sure that blacks now can catch up, because it was government action that put them in a disadvantage in the first place.

Affirmative action is a conservative remedy to a government program of discrimination.

Discrimination in this country, Novak, was not a custom or tradition. It was law, it was government-enforced, and government must remedy what government did!

NOVAK: Reverend Sharpton, let's be very frank on this. You're for racial quotas, are you not?

SHARPTON: No, I'm for affirmative action.

NOVAK: You want to set a -- well, in this case, at the University of Michigan Law School, Judge Friedman says 10 percent of the membership was set aside for minority groups. That is a quota, is it not?

SHARPTON: No. That is a goal to try and remedy the fact that zero percent was what the law of blacks until just a generation ago. You can't erase history. You can't agree we must repair everyone that we've done in around the world other than those that built the country inside as Americans of African descent. You can't have it both ways. You can't repair enemies of war and not repair people that you discriminated against.

I'm not even talking about slavery. My mother couldn't vote until she was grown. I'm the first generation in my family that finished high school or college. By law in Alabama what happened to my mother!

So you can't just erase history and say we're going to start with an imbalance and make it right. I think what Mr. Bush is proposing in terms of affirmative access, in all due respect to my friend who is on tonight, who has done good in Ohio -- I think again, without enforcing laws, we are depending on the goodwill of people who have not demonstrated historically having goodwill.

REICH: Ken Blackwell, what do you say to that? Do you think that you can't really have diversity without some sort of affirmative action?

BLACKWELL: Well, I think you can. I want to go back to what Bob asked, and that is whether or not all the folks, the African-Americans and Latinos sitting in the Michigan Law School classrooms are there because of affirmative action. That is a misnomer. Many of them are there because they have competitive scores.

The question to the plaintiff in this case has to be whether or not she was kept out of that seat because she was white, or was it because she was from a particular geographical area, or was it because she wasn't a legacy. You know, who, in fact, kept her out of that seat?

It was the overall goal of the law school to seek diversity. I do think -- and I disagree with Reverend Sharpton -- that, you know, once you set a 10 percent goal -- or not goal, a quota -- it is a quota. And you can't call it anything else. And that's where you run into a problem.

NOVAK: A quick response?

BLACKWELL: Excuse me?

NOVAK: That's going to have to be the last word. I'm sorry.

Thank you very much, Ken Blackwell.

BLACKWELL: Thank you.

NOVAK: Thank you very much, Reverend Al Sharpton.

And Professor Reich -- can I call you professor?

REICH: You may call me anything. Your highness.

NOVAK: We'll be back with a really new twist on this subject in closing comments.

(COMMERCIAL BREAK) REICH: Bob, you know, all these cases are going to the Supreme Court, Sandra Day O'Connor is going to be the swing vote. And the real issue is whether diversity is a compelling state interest.

I don't know about you, I think it is a compelling state interest and I don't think the Bush administration is going to support it.

NOVAK: I don't think it is a compelling state interest. And the interesting thing, the irony, Bob, is that you have a situation where for years the high court was the liberal anchor against a more conservative administration, more conservative Congress. Now, the Congress and I think the administration is afraid to act against affirmative action, against racial quotas, and the Supreme Court may on a 5-4 decision end it rather than mend it.

REICH: Well, they'll call it affirmative access, but you know as well as I do these words mean whatever you want them to mean. They are not going -- they don't want any even -- even slight use of race at all.

NOVAK: It's a quota system. You know there's quota systems all over the place, Bob..

REICH: It's not a quota system. It is not, Bob. It is just simply using race as one, one element, one element of deciding who should be in college.

NOVAK: That disappoints me, Bob.

REICH: Anyway, from the lively left, I'm Robert Reich. Good night for CROSSFIRE.

NOVAK: From the right, I'm Robert Novak. Join us again next time for another edition of CROSSFIRE. Go Terps!

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