“The End of Affirmative Action Would be a Disaster”

CHRISTIANE AMANPOUR, HOST: And in the United States, the Supreme Court’s conservative super majority is set to overturn another significant precedent, that for decades has allowed universities to consider race in their admissions process. It’s a move that would be, “A disaster”, according to two legal scholars and university administrators. Lee Bollinger, the president of Columbia University and Geoffrey Stone, professor of law at the University of Chicago. And they tell Michel Martin why they believe the nation needs more affirmative action not less.

(BEGIN VIDEO CLIP)

MICHEL MARTIN, CONTRIBUTOR: Thanks Christiane. President Bollinger, Professor Stone, thank you so much for joining us today.

LEE BOLLINGER, PRESIDENT, COLUMBIA UNIVERSITY AND CO-AUTHOR “A LEGACY OF DISCRIMINATION”: Pleasure.

GEOFFREY STONE, DISTINGUISHED SERVICE PROFESSOR, UNIVERSITY OF CHICAGO LAW SCHOOL AND CO-AUTHOR, “A LEGACY OF DISCRIMINATION”: Thank you for having us.

MARTIN: One of the reasons we called the two of you is you both published a piece — a jointly authored piece for “The Atlantic” titled “The End of Affirmative Action Would Be a Disaster.” Why a disaster, professor Stone, do you want to start?

STONE: I think mainly both of us have had a lot of experience in managing and running universities. I was dean of University of Chicago of Law School, provost of the University of Chicago. And Lee, of course, has had been president to both University of Michigan and Columbia. So, we’ve seen, over many years, the impact of affirmative action on our universities and more importantly our society. And I think that in addition to the diversity rationale, another very important factor that has largely been lost in the discussion and the understanding is that we live in a society in which we still have many impacts from the history of discrimination against blacks, in particular, of our history. And that continues in all sorts of ways. In public education, in residential opportunities, in employment opportunities and so on. And that affirmative action is essential to essentially provide opportunities to individuals who have inherited, and continued to live in that world of discrimination.

MARTIN: What is your overwhelming, sort of, metric of success here? Like, what standard, do you think, we should be using to evaluate this whole, sort of, project of formative action and higher education?

STONE: I do think that there’s some value to the diversity issue in a sense that students have an opportunity to interact with students who come from backgrounds, different from their own. But I think, a central reason in metric in evaluating affirmative action is the fact that the students who have the opportunity to attend schools like Columbia, and Chicago, and Harvard, and Yale, and Stanford, and so on, who might not otherwise have that opportunity, get enormous benefits. And then they go on to effect life and effect world, and to educate others and to inspire others. And I think that’s a very positive long-term effect for affirmative action. It has a cumulative impact on our society.

MARTIN: And President Bollinger, taken that the other way, as I said, the title of your piece is, “The End of Affirmative Action” in the view of both of you would be a disaster. Why a disaster?

BOLLINGER: So, we want to argue. We do have a book that’s coming out in January called “A Legacy of Discrimination.” This is about racial justice. And the country beginning with Brown versus Board of Education in the 1950s, and the civil rights movement, and the laws that have followed. And the practices all across the United States in business, in universities, in media, elsewhere, really have tried to come to terms with the fact that there is this terrible legacy of slavery, Jim Crow Laws and deep discrimination against African Americans in the society. It continues to this day. And the opportunities for African American children and youth are really not the same as they are for other groups, in particularly white. And the resegregation of American K through 12 public education is a shocking continuation of the segregation that preceded Brown. We point out, that since the 1980s the number of children, black children going to, virtually, all black schools has tripled in that period of time. Most students who arrive at major campuses have come from largely all white or all black educational backgrounds, and even living backgrounds. So, there is a serious problem with racial justice in America. And universities since the early ’70s have simply been doing their part to try to help correct for these injustices. So, the argument that this benefits people because of diversity is very important. But there is a profound context here of centuries, certainly, decades of discrimination that society must overcome. When that happens, when that’s really dealt with, then we will not need affirmative action. But we do still, and this will take generations to grapple with.

MARTIN: President Bollinger, why do you think that affirmative action remains so deeply unpopular in many sectors of society? The cases that are currently before the court didn’t just, sort of, arise out of nowhere. There’s — this has been a long-term project of a dedicated group of conservative activists. Some might argue they have a particular animist (ph) toward African Americans, I don’t know that. But they certainly have a particular focus animist (ph) towards affirmative action. If the benefits of affirmative action are clear to you, to the two of you and also to other educators, why do you think it remain so broadly unpopular?

BOLLINGER: I think, you know, there’s a reasonable basis for opposing affirmative action in higher education. If you start from the premise that there has been and continues to be serious invidious discrimination, I think that’s the only premise you can start from. You can say, we should not make any exceptions for public institutions to take account of race because we need a clear clad — clear cut and rule pool against that because it’s so dangerous. I understand that argument. I think it’s a reasonable argument. I think we can make exceptions between what’s for good and what’s for bad. And I think that’s the debate. However, I think you’re quite right that there have been movements against this role really for decades now. It’s highly controversial, but we shouldn’t expect otherwise when it comes to something as charged as race in America.

MARTIN: At the Harvard case at issue is the alleged discrimination against students of Asian descent. In the spirit of full disclosure, I also went to Harvard. I am privy to communications among alumni groups. And I am aware that there is a significant group of Asian American students who support the university’s position. But there are students, or would-be students who do oppose it, who are of Asian descent, who say that it’s not fair to discriminate as they see it against one particular group to advantage another particular group. Their argument is that these so-called objective measures like tests and grades should be dispositive here. And how — and so, President Bollinger, how do you respond to that?

BOLLINGER: So, of course there should not be discrimination against any group based on race. And Harvard made the argument, and I think it completely convincingly that there is no discrimination, no effort to limit the number of Asian Americans who are students in the class. Really, two points to be made. The first, is that when admissions offices put together classes, student bodies, they take into account unbelievable variety of factors. They look for young people from all parts of the United States. They try to get places from international backgrounds. They look for people with special kinds of experiences in life. They want athletes. And we want people who are racially unethically diverse. And so, they compose a class. It’s not done simply by looking at standardized test scores and grades, although those are important factors to be sure. So, it’s really wrong to say that we should simply line everybody up and decide based on standardized test scores and grades. You know, what 1,000 students are to be admitted, much more complex than that. The second point is that, we are dealing with something in America of unique discrimination against African Americans. We have recognized this. We have tried to come to terms with that. We are still trying to do that. We are trying to correct for what are continuing injustices that African Americans face.

MARTIN: President Bollinger, go back to the Grutter case, if you would. This is when you were the president of the University of Michigan. And the plaintiff in that case was a white resident of Michigan. She applied for admissions to the law school. She had some strong credentials. She was denied admission. And the case was taken to the Supreme Court. You were named as a defendant in the case. Tell us a little bit about that decision and why it was so consequential, and what role that plays in where we are now?

BOLLINGER: So, the quick overview is Brown versus Board of Education in 1954 decides that segregation by race of schools is unconstitutional, and that’s a major decision, the most significant of the last century. By 1971, institutions like universities had realized that we were not making progress in overcoming racial injustice. Every top university, selective university, decided to consider race and ethnicity in order to have integrated student bodies. In 1978, the Supreme Court had a case challenging that. And in an opinion that made up a majority written by Justice Powell, he said, you could consider race and ethnicity if you did it for educational purposes, for the benefits of educational diversity. But you could not take it into an account to rectify past the present injustices. My case that I was involved with, really against the University of Michigan and the law school which had a policy that basically every other law school had, of trying to have a diverse student body was again challenged. And a majority of the court, five justices upheld that practice. So, it was a landmark decision because it — we had not had a majority of reaching that conclusion before. So, in 2003, this became settled constitutional law. That was followed by a subsequent decision called Fisher, which reaffirmed Grutter, and now we are with these two cases before the new court.

MARTIN: I think in the wake of this court’s decision to overturn Roe V. Wade, I think many people are remembering that the late Supreme Court Justice, Ruth Bader Ginsburg, took issue with the grounds in which Roe was decided. I mean, she said that she thought that the privacy rights was not a strong foundation. That in fact it should have been decide on the basis of equal protection under the law. So, this makes me wonder, Professor Stone, if you feel similarly about the Grutter decision whether, sort of, hinging this on this, kind of, vague notion of diversity is — was not a firm foundation. That, really, it should have been a matter of reparations, which I know is a loaded term. But it’s a matter of redressing profound systemic past discrimination and would that have been a better choice?

STONE: I mean, I agree strongly with that. I think that was the view of several of the justices. At the time, Justice Powell was really the only one who strongly put forward the diversity rationale. That he was a swing vote in that case. The explanation for affirmative action was based fully upon the notion that we have lived in a very unfair, unjust, discriminatory society that continues to have both the effects and the realities of that discrimination and that this is one of the ways to which I’m to address it. And it implies, by the way, not just on higher education. It applies in business. It applies in the military. I mean, one of the things that people forget is this is not anomalies (ph) to universities. All sorts of entities and organizations throughout the nation engaged in affirmative action in order to improve both their function and also to have a positive impact on society. So, I think it was a terrible mistake that the courts have moved into this diversity rationale. Which is not say that it doesn’t have value, but it’s to say, as you suggested, that the core fundamental of reason for affirmative action is less about diversity, it is about justice. It’s about reckoning with our history, with our past, and even with the unfortunate discrimination that continues to exist in our society today. And there are many ways that we attempt to do that, and this is one of them and it’s been successful.

MARTIN: There are many analysts who are saying, this is a foregone conclusion. That this court is determined to overturn affirmative action. This courts not guided by president. We’ve seen this in other, you know, other examples. People who’ve looked at this court closely believe that this court does not share your concern about the utility of affirmative action, it doesn’t share your concern about the consequences of ending it. And clearly, they don’t share your concern about the depth of past discrimination against African Americans. So, given that, what now, Professor Stone, do you want to start? What’s the way forward here?

STONE: Well, first of all, I do fear that six justices on the current Supreme Court will take a strongly negative approach of the legality and constitutionality of affirmative action. Far more so than the majority of court has ever done. And as in the abortion context, I think we’ll see the same type of reaction from these justices, that’s in part why they were appointed. And it’s the most partisan, and in some ways, the most radical majority that we’ve had in the Supreme Court in a century. And that’s very troubling to those of us who believe deeply in constitutional law and in the importance of the Supreme Court. What we do going forward, assuming they do strike down the constitutionality and legality of affirmative action is a great question. The best answer to that would be to create equality in our society in terms of opportunities for education, the money that’s spent on K through six schools, the amount of resources that is spent on residential housing, and training of individuals. A lot of the problem is the fact that, as a society, we’ve not done very much to address the effect of past discrimination. And affirmative action was one way of attempting to do that. But there are lots of other ways to do it. It’s just not clear that this society and this court are prepared to do so.

MARTIN: So, President Bollinger, before we let you go, you’ve been writing about this issue for many, many years. You’ve been thinking about it for many, many years. And I just find myself wondering what this moment brings up for you and what do you see as the way forward?

BOLLINGER: So, I didn’t set out to make this a central issue of my life. But I was, by virtue of being president of the University of Michigan and the lawsuits that were brought, it became central to my life. I’ve always believed in. But this became a much more of a mission. Jeff and I are from a generation that were formed and shaped in the era of the civil rights movement. We became law professors in the context of Brown versus the Board of Education and the profound effects on law. From our point of view — from my point of view, it would be a tragedy if a majority of the Supreme Court, as appears very likely, were to overturn a half century of efforts by higher education to try to help overcome the racial injustices that we have lived with. This is not a small matter. As we see in other universities that have been affected by bans on affirmative action. University of California Berkeley, University of Michigan have seen African American students plummet. But it’s not only higher education. I mean, this is an unraveling of the efforts of institutions all across the United States to try and deal with racial injustices that we have inherited. And they continue to affect American society adversely. So, to me, it would be a tragedy. We would be entering a new era in which we would be ebbing on our efforts to try to live up to the ideals of Brown versus Board of Education.

MARTIN: President Lee Bollinger, Professor Geoffrey Stone, thank you so much for talking with us today.

BOLLINGER: Thank you.

STONE: Thank you for having us.