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@THISHOUR WITH BERMAN AND MICHAELA

Supreme Court Upholds Michigan Ban on College Affirmative Action; How Could Teen Enter Jet's Wheel Well; South Korea Parent/Child Relationship Grieving; Mt. Everest Sherpas Threaten Strike.

Aired April 22, 2014 - 11:30   ET

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


(COMMERCIAL BREAK)

JOHN BERMAN, CNN ANCHOR: A big decision coming down a short time ago from the U.S. Supreme Court. Justices voting 6-2 to uphold a controversial Michigan law that bans the use of racial criteria in college admissions. This is a law that Michigan voters approved eight years ago.

I want to bring in our senior legal analyst, Jeffrey Toobin, to talk about this.

Jeffrey, this is a big case and a big decision. It seems to me what the justices did here is lay out a road map to show states how do away with race admissions?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST (voice-over): That's exactly what that he want to. The real implication of today's decision is that affirmative action is going to be very much part of the political agenda now. Because, as you say, the voters here effectively overruled the Supreme Court and said, look, you said we could have affirmative action, but we don't want it and we're going to ban it. And the Supreme Court today said that's OK, you can ban affirmative action. So now the question is, what states, what voters, what state legislators will now try to do that in other states? And how will politicians defend and attack affirmative action?

MICHAELA PEREIRA, CNN ANCHOR: Yeah, it's going to be interesting. The ramifications and implications could be quite broad. Now, there are some voices among them at the University of Michigan in Ann Arbor have criticized the ban saying, look, this makes it tough for us to have a diverse student body. What kind of resource do you think they have?

TOOBIN: Well, they, at this point, I think, have no recourse at all, other than to get the voters of Michigan to change their mind. Because the Supreme Court basically agreed with the University of Michigan 11 years ago and said, yes, you can have affirmative action because we think those are legitimate goals. But what the Supreme Court said today is, well, you can have affirmative action, but you don't have to have affirmative action. That, if the state wants to overrule the decision of the university, that's up to the state. It's OK for the state to do that. So, as I said, this really returns the issue very much to the political arena and takes the decision away from the academics and the university administrators who have been making those decisions.

PEREIRA: And, Jeffrey, this is a 6-2 decision with Justice Steven Breyer voting with the majority here. So what does that tell us?

TOOBIN: Well, that is certainly a divergence from the usual pattern we see in this court. There are five Republican appointees. There are four Democratic appointees. And usually, on very constitutional issues, they vote in lockstep. Elena Kagan was recused. She did not participate in this case. But Steven Breyer, who is one of the four Democratic appointees to the court, did vote with the more conservative members, and that's certainly a notable fact about today's decision.

BERMAN: Jeffrey Toobin, thank you for being with us. Our senior legal analyst laying out the implication of this important case.

PEREIRA: A lot of people are going to be discussing this. As he said, the implications will be huge.

All right. To a story that has a lot of people scratching their heads. A lot of us are talking about the teenager's death-defying flight in the wheel well of a plane from California to Hawaii. The teenager said he hid in the wheel well of a jumbo jet. It's certainly raising a lot of questions, chief among them, about airport security.

BERMAN: And the TSA is investigating how this boy scaled a fence at the San Jose Airport without anyone noticing.

There's another question that people are asking, which is how could he have gotten up in the wheel well. How did he get up in there?

Our Gary Tuchman shows us.

(BEGIN VIDEOTAPE)

GARY TUCHMAN, (voice-over): This is Southern California Aviation Airport in Victorville, California, in the desert where airlines all over the world bring their planes they're not using anymore. We're going to demonstrate to you how someone would get in the wheel well of an aircraft.

This is a Boeing 667 that used to be used. This is the door that is closed. But there is a way to sneak into a hole to get into the wheel well and we'll show you how that would start according to experts here. Someone who wanted to get in the wheel well would get in one of the two tires. You step on the bars right here, climb all the way to the top right here. And this right here is where an opening would be to climb into the landing-gear wheel well. Once someone would climb through that hole, they would end up here.

I'm going to show you what happens after they climb through the hole. They get in this area. This is the wheel well area. And we're told there's only really one place to sit where you could possibly survive, because when the wheels move in, the two huge wheels, they come right here. There's no room, except for right here in this spot. And this is where the experts say you would have to sit with your knees closed to you. The wheel well would close with the two tires right here. This is the only place you could possibly survive. There's nothing stupider in the world to do, but this is where you can do it.

(END VIDEOTAPE)

PEREIRA: Look at how breathless he is.

BERMAN: That's how the kid might have done it. Assuming he's a spry as Gary Tuchman, that was very impressive, Gary climbing up in there.

PEREIRA: Not an easy feat.

BERMAN: Hat's off to Gary.

That's how he may have climbed up. The question is now, how he survived. Clearly, a lot of people think he cheated death.

PEREIRA: The numbers back it up, that's for sure. According to the FAA, 105 stowaways have made similar attempts since 1947. Check out how many survived. Only 25.

Senior medical correspondent, Elizabeth Cohen, joins us right now.

Good to see you, Elizabeth.

I think we're all mystified how anybody could survive at 38,000 feet, freezing temperatures, lack of oxygen. He should have suffocated at the very least.

ELIZABETH COHEN, CNN SENIOR MEDICAL ANALYST: I know. It just seems amazing he's not in the pressurized cabin.

Here are the two things going on at 38,000 feet or whatever altitude. Number one, a lot less oxygen, right? You're way up, so there's a lot less oxygen. Our experts tell us in less than a minute he was probably unconscious.

But the other thing, Michaela, is the temperatures are very low. And that actually works in his favor because his metabolism slows way down. That may be why he was able to survive.

What's amazingly is just walked out of there. That has people scratching their heads. If he was unconscious, how did he walk out of there? If may have been the descent is gradual and he regained consciousness or he's young and really lucky.

(CROSSTALK)

PEREIRA: He didn't get out of the plane for about an hour.

BERMAN: No. He took some time to get out. He walked out, as you say. Do we know he's necessarily completely OK or will there be lasting implications?

COHEN: No. There could be lasting implications. The one that you would worry about is brain damage. He had no oxygen for hours. We don't know right now what long-term implications that would have on his brain. But that is certainly the big concern.

PEREIRA: Would that be something shown right away or over time, Elizabeth?

COHEN: You know what, it could be both. It would be interesting to know what evaluations he's getting. It will be interesting to know, over time, is he having trouble in school or basic functioning. There's no NIH-funded study on this, as you can imagine. I hope that they follow him and they see what happens.

PEREIRA: Look, let's be honest, too, for a kid to take those lengths to run away, there's some mitigating factors. Hopefully, the kid's going to get the help he needs. He's obviously running away from something.

BERMAN: Elizabeth Cohen, thank you. Tomorrow, you'll be going up in the wheel well, something we're asking all CNN reporters to do.

PEREIRA: That may be up for Martin Savidge?

(LAUGHTER)

BERMAN: Him, too.

Coming up for us next, families torn apart as dive teams search for survivors. Now the ferry company is begging the victims' families for forgiveness.

PEREIRA: Then, it vanished without a trace. The search for flight 370 continues. We'll talk about it coming up @ THIS HOUR.

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(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE (through translation): I had hoped that I'm feeling complicated and heavy-hearted now. Even though there's air, he hasn't been eating anything and drinking water for six days. I wonder if he's alive in his condition.

(END VIDEO CLIP)

PEREIRA: So many families in South Korea in the midst of an agonizing wait, hoping against hope that their loved one is still alive. The odds of surviving that ferry disaster one week later certainly are not looking good.

BERMAN: We know those affected by this tragedy are grieving. Of course, we all do grieve differently.

We're talking about -- we have our two guests here to talk about this. Jeff Gardere is a clinical and forensic psychologist; and Stephen Noerper is president of the Korea Society.

Steven, I want to start with you.

You say there is a relationship between parents and children and that may be affecting this grieving process.

STEPHEN NOERPER, PRESIDENT, KOREA SOCIETY: There is. There's an investment by the parents of over 55 percent of household income to education. Most parents only have one or two children. It's rapidly industrializing the expense of things and keeping the family smaller. That has made the loss all the greater.

PEREIRA: And that's the hard thing to swallow when you think about many of these families lost the only child they had.

We saw a statement put out by the company that operated the ferry. Jeff, I want to read it to you. Put an apology up on its website. Here's what it says. Let's put that up on the screen. "We pray for the Sewol victims who lost their precious lives due to the accident. We prostrate ourselves before the victims' families and beg for forgiveness."

Certainly, Jeff, this is not the way we see an American company react to a disaster, something that may have been caused by employees of the ferry company. Quite a stark cultural difference here.

JEFF GARDERE, CLINICAL & FORENSIC PSYCHOLOGIST: Exactly, they're not going to hide behind any legal legalese or anything like that. They're going to come out and say, yes, we feel absolutely guilty. We feel absolutely mortified by what has happened. But that is the South Korean environment. This is the way that they think. We know that there's a very, very high suicide rate inside South Korea, so we know a lot of these families, for example, some of them will have to be on suicide watch. Many of them are in hospitals, hooked up to I.V.s. So losing their children is one thing, but just that whole idea of failure, of doing the wrong thing, I think this where this company is coming from. That they know that there were murderous action here's by the captain and perhaps by the crew.

BERMAN: Stephen, we have to be careful about cultural generations but there was a suicide already here. It was the vice principal of this school who appears to have killed himself after this incident. He was a survivor there. Does that surprise you?

NOERPER: I think it was a tragedy on top of tragedies. He indicated that in the note. Very sad, indeed. He felt responsibility for the students and it's the loss of what may be 300 lives just seemed to be overwhelming.

Interesting to note that President Obama will be in South Korea on Friday and Saturday. He has two teenage daughters. I'm sure his level of empathy on this will be very touching to the Korean people.

PEREIRA: And just preceding that, he'll have been in Washington State. We know he's going to be there visiting with families that lost loved ones, all the people lost in the mudslide. Certainly, our president has been doing a lot of comforting to the grieving family.

I want to say a big thank you to the two of you. We know this compounds the grief that the families are feeling.

GARDERE: Absolutely.

PEREIRA: Thank you, Stephen and Jeff.

BERMAN: Coming up for us, hundreds of people climb the world's tallest mountain every year. But now, after a deadly avalanche, the whole short-climbing season is in jeopardy. It could be called off. Why the people who guide hikers to the top are threatening to strike. We will speak with am expedition leader, next.

(COMMERCIAL BREAK)

PEREIRA: Friday's avalanche on Mt. Everest could shut down the entire 2014 climbing season before it even begins. At least 13 Sherpas were killed in the deadliest day ever on the world's tallest mountain. They were preparing the route to the summit for their clients. Now, hundreds of Sherpas are threatening to go on strike.

BERMAN: They're upset with how the government is compensating the families of victims, $400 per family. A lot people don't think that goes far enough, given how dangerous this work is and how much money it brings into that country.

Adrian Ballinger is an expedition leader who was planning to lead a trip to the summit. He is in Katmandu, which is very, very far away. There's a little bit of a delay here. He joins us by phone.

Let me first ask this, could you end up having to cancel your planned expedition?

ADRIAN BALLINGER, EXPEDITION LEADER (voice-over): I think it is possible we might have to cancel our expedition. Sherpas are still quite happy to climb and want our expedition to move forward. But the Sherpa community as a whole, their demands have not been adequately responded to by the Nepali government and their potential strike means nobody climbs this season. If that is the overall decision, we will certainly respect that.

PEREIRA: We understand that this $400 seems like a drop in the bucket. We know that many of these men are the only breadwinners in their family and how devastating it could be to their communities. What would you like to see the government do?

BALLINGER: I would like to see the Nepali government show more understanding of what an extreme loss this was for the Sherpa community and the families that lost, like you said, the primary breadwinner. In general, the Sherpas who work on the mountain, they are well compensated for their risk. And they do understand the risk they take. They have small life insurance policies. Some larger than others. But in this case, there's an opportunity for the government to really show that all of their permit fees they collect this season, some of that could go to these individual Sherpa families and to the Sherpa community as a whole. It really shows how important this is for the tourist industry and Nepal as a country.

BERMAN: Adrian Ballinger, joining us by phone from Katmandu, thank you so much for being with us. Really, talking the concerns of the entire Sherpa community here, what they've been going through and really, you know, the idea of fairness, given how difficult their jobs are.

PEREIRA: Think about if they did cancel the existing ones that were booked, are those Sherpas NOW without the money they could have made for the season?

BERMAN: Absolutely.

PEREIRA: That could devastate all of those families. All those concerns are valid. It will be interesting to see how it's reacted to.

Short break. Ahead for us here, from air to sea. Oh, our Martin Savidge really got a feel for what search crews are feeling when they're looking for Malaysian Airlines flight 370. Guess what? Martin Savidge joins us on the set of @ THIS HOUR.

BERMAN: You'll never guess what we will make him do next.

(LAUGHTER)

(COMMERCIAL BREAK)

BERMAN: We have a very special guest in our fine studio. Free at last, CNN's Martin Savidge.

(LAUGHTER)

We've seen him take off in a flight simulator. We've seen him do everything in a flight simulator. We've also seen him below the surface of the sea in a sub.

It's really been fascinating and crucial. Martin's helped us understand what might have happened to flight 370. He's also helped us understand the search effort and the issues these crews are facing.

PEREIRA: Some of the tools they have at the ready.

Martin is now with us to talk about some of these big adventures.

I think we were a little concerned they might try to stick you up in the wheel well of a jumbo jet to test that out.

(LAUGHTER)

PEREIRA: Welcome back, away from the virtual world. Welcome to the real world. How are you feeling? We know that last mission was challenging.

MARTIN SAVIDGE, CNN CORRESPONDENT: The underwater thing, I did have a bit of a problem with. We can talk about that. All of it was a fascinating experience, especially the time in the cockpit. I mean, it was just -- I learned so much. I respect so much now the job of pilots and the engineering of safety that is built into these planes. I know we're still covering the tragedy but they are remarkably safe. I gather that.

BERMAN: So you were in that simulator for a while answering some of our questions and viewer questions. What was it like when you were getting these questions? Did you always feel like there was an answer you could provide in that simulator?

SAVIDGE: Yes, Mitchell was very good about that. I would say, this seems off the wall, how are we going portray this. He would say, no, we can do it. Some of them were a bit uncomfortable. For instance, fly at 5,000 feet through the Himalayas. As a professional pilot, he knows nobody would ever try such a thing. For the purposes of explanation, we did push it sometimes to the limit. But it was great because it was a perfect show-and-tell. And the cockpit to most of us -- we all fly but we don't know how to fly. And I think that is what was so good, is that usually the cockpit is that mystical land.

PEREIRA: It's a mystery.

SAVIDGE: Yeah. What goes on behind there? And of course, since 9/11, it's become even more so for security reasons. We were able to demonstrate and show you. It didn't matter how off the wall, we could still put it to the test.

PEREIRA: What I love is you went to that far away mysterious land, Canada, for the simulator. You went to Horseshoe Bay, British Columbia. It was interesting how the search has become this international effort. But there's a lot of people around the world that are really invested in solving this mystery, as evidenced by the technology we've been seeing put into play.

SAVIDGE: Yeah, you've got it from -- I mean, I have pilots who come up to me all the time. If it's a restaurant, sit down right in front me, come on what do you know, die to talk about it. You have people who have just been caught up in this around the world. And then there is the technology. To be able to see some of the amazing equipment that is being used to try to solve this case is pretty astounding. And to go under water and sort of -- I said it was equivalent to getting into my washing machine.

BERMAN: Let's talk about that. It should be noted, he went to Canada and spent the entire time in very confined spaces. That's instructive. Let's talk about going under water. This was something that made you a little bit nervous.

SAVIDGE: It did. Little would be a gross understatement.

BERMAN: Did you think about saying no?

SAVIDGE: I think at that point -- I've never said no. I've done a dozen wars, tremendous storms, everything I can think of. I normally am not claustrophobic. I've done summaries on it. But I got into this thing, I ducked in for three seconds to see what it feels like, three seconds later, I literally almost dove out of the hatch, gasping for air. There's all the engineers and camera people and everybody who's worked so hard to set it up to go live, and they're all looking at me. And they're all going, he's not going to be able to do it. I'm looking back at them going, that's all right, give me a few seconds. Mentally, I'm saying, I'm not going to be able to do this.

(LAUGHTER)

So it was a lot of mind over matter. I still found it fascinating and I think it was the geeky part of me that so much wanted to do this.

PEREIRA: The gee whiz, the wow. Yeah.

SAVIDGE: Yeah, right.

PEREIRA: Look, Martin Savidge, we are --

(CROSSTALK)

PEREIRA: -- huge fans.

BERMAN: He's right here.

PEREIRA: He's free to move around the country.

Thank you for your hard work.

SAVIDGE: By the way, your studio is way too big.

(LAUGHTER)

PEREIRA: We're thinking of downsizing, putting it under water somewhere.

Really a delight. Keep up the great work. Come back and see us soon, OK?

SAVIDGE: Thank you.

BERMAN: Thanks for joining us @ THIS HOUR. I'm John Berman.

PEREIRA: And I'm Michaela Pereira.

"LEGAL VIEW" with Ashleigh Banfield starts now.