Welcome back to the Dershow. Today I want to talk about affirmative action, particularly

race-specific affirmative action. The United States Supreme Court has before it a very

interesting case growing out of my own university, the one I taught at 50 years. The claim

by Asian American applicants and others litigating on their behalf is that Harvard's admission

process by discriminating in favor of African American and certain other ethnic groups implicitly

discriminates against Asian Americans. In other words, by putting a floor below which African

American admissions can't go, they in fact impose a ceiling on the number of Asian Americans

who will be admitted. Now, African Americans say historically they've been discriminated

against through slavery. Obviously, that's true. But Asian Americans also have been discriminated

against. Japanese Americans, 110,000 of them, approximately, were rounded up and put in detention

centers during the Second World War as the result of an edict by the American military supported,

not only by liberal President Franklin Delano Roosevelt, but by a liberal Supreme Court in a

decision written by one of its most liberal members. You go black. So you can't

really solve problems of past discrimination against one group by discriminating against

another group. The betting odds by experts is that this Supreme Court, unlike past Supreme

courts, will almost certainly strike down the Harvard plan and require that race not be considered

explicitly as a factor in admission and that no floor ceilings quotas really are constitutionally

permissible. Now, schools will find ways of circumventing that holding, my former colleague

Professor Lawrence Tribe, has already said that Harvard and other elite institutions will figure

out a way of getting around the holding of the Supreme Court, not something I think a constitutional

law scholar should ever advocate circumventing a Supreme Court decision. But universities will

do so. They'll try to find ways of maintaining essentially a quota system based on race

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