Mark it, please.

OK, Jackie.

OK. So, let's begin. In the mid-seventies, you're an affirmative action student at Yale-

Stop for a minute.

Stopping down, please.

Mark it.

OK.

OK, so, we're in the mid-1970s. You're an affirmative action student. I want you to tell me how you were perceived as such by faculty members, White students, other minority students.

Hmm. K. Can we start over?

Yeah, we can [unintelligible].

Yeah.

Please stop.

OK. Stop.

'Cause I hadn't thought about looking at that question that way.

Cut.

Mark it.

OK.

OK, so let's begin with your telling me what it was like being an affirmative action student in the 1970s.

OK. Yeah. One of the big surprises for me when I got to Yale Law School was that I found that there was a difference in how students at Yale, and faculty members at Yale, and for that matter some administrators at Yale related to Black students and other students of color. And this, this came as a, as a great surprise to me because it was a marked departure from what I'd been used to in college. In college I had worked very hard, graduated number one in my department and looked very favorably upon going to Yale Law School. I had expected that what I'd find when I got there would be a superb student body in general, but also, in particular, that there'd be an excellent array of students of color there. And when I got there, that's, in fact, what I found. What amazed me, however, was that the students of color were stigmatized in that environment. And not only that, but it seemed to me that there were a whole array of ideas that were connected to questions of affirmative action and questions of equality that were really misconstrued. A whole lot of wrong-headed ideas seemed to be floating around the law school environment about what affirmative action was all about, and about how students of color fit into this whole process.

OK, now can you wipe your brow? Keep rolling. [pause] And did you feel that you were any different from any of the other students at Yale by virtue of your being an affirmative action student?

Well, it was always clear to me that, that, that not only myself but that the, the students of color, the Black, the Hispanic students, the Native American students there were just as good as anyone else. The problem for me was the interpretation upon the participation of students of color in this environment that was, that was very disturbing. And it was something that I hadn't expected to find. It was something that was very different from my experience at, at St. Joe's. I mean, I had been a, a student who had participated in an affirmative action program at St. Joe's, as well, and without affirmative action I wouldn't have had the opportunity to attend that college either. But once I was admitted to St. Joe's, no one ever gave me or any of the other Black students and other students of color that were there the impression that we somehow didn't belong. It wasn't until I got to Yale Law School that I ran into, for the first time, this idea, which I've never learned to stomach, this idea of the best Black. And, and the way that works is that, the idea is that there...that even the best Blacks, even the so-called best Blacks are not quite as good as the so-called best Whites. And I began to wonder, you know, where these ideas were coming from and how they were connected to people's conceptions about affirmative action, and why it was they seemed to collide with reality of what meaningful equality meant in the latter part of the twentieth century, for me and, and for other people of, of color in, in college and universities throughout the country. And it was really at that time that my intellectual interest perked with respect to a concern about questions of race and equality in contemporary America.

Now, in February of 1977 the Supreme Court decided to hear the Bakke case. What was its significance? What was its symbolic significance to you as a Black graduate student at the time?

Well, it, it, it was, it was-

I'm sorry. Can you give me the Bakke case?

Oh, yeah.

Yeah. OK.

Oh, the, the Bakke case was of tremendous significance for all students in the United States at that time. In particular, students of color. It...for the first time, the issue of affirmative action was going to be heard by the Supreme Court and actually decided upon. I mean, the issue had come before the court once before in the DeFunis case, and been mooted. So, there was a, a lot of vocal [car horn] attention focused upon the issue of what was called at the time, and what is still called in, in, in the mass media, the issue of refirm-of, of reverse discrimination and the idea that reverse discrimination is somehow inextricably linked with the inherent nature of what affirmative action programs are supposed to be all about. And so that issue caused a, a great amount of concern amongst the entire student body at Yale, particularly students of color. And I have to say that part of the, the array of concerns that, that, that developed as a function of the, the, the whole reverse discrimination debate was that the issue affected, in, in some ways that could be considered psychologically damaging, the, the feelings that even some Black students, in particular, and some other students of color felt about their participation in the environment at Yale. And so, all of these issues were crystallized with the courts focusing upon deciding the Bakke case.

What do you mean when you talk about the psychological impact on students of color?

Well, I think connected to, to [sighs] I think that affirmative action has basically been misconceived by the American public. And I think one of the ways that it's been misconceived has to with the nature in which the debate about how affirmative action has been constructed. I mean, if you really look at the terms of the debate, the very terms of the debate imply in subtle but yet important respects that...a certain sense of superiority of Whites and inferiority of people of color. The, the idea is kind of that Blacks are getting something that they really don't deserve, and that Whites are, are being hurt, even if it is for a good cause, but, nonetheless, they're being hurt because affirmative action, inevitably, is said to involve a process of reverse discrimination against Whites. Now, the reality is that affirmative action is really something very other than that. But in the environment of the law school at the time, where there were very few significant others of color, and faculty members who were writing, some faculty members who were writing articles suggesting that really, with the exception of a very small handful of students, there really weren't Black students and other people of color who were suited to be educated in elite universities, not just at the level of law school and, and medical school, but also in terms of major undergraduate colleges and universities across the country. And these ideas, as you might expect, affected the thinking even on some students of color. So, one of things that I found interesting was that it was at Yale, not at St. Joe's that, for the first time in my life, I ran into extraordinary Black students, some of whom really felt that maybe they belonged at Yale, but certainly other Black students did not, and, certainly, some of the other students of color did not. And all of that was really, largely a, a reflection, I think, of an inability of even some of the members of our community to sustain the, the constant assault on the psyche that comes from being in an institutional environment where significant others feel that you really aren't quite as good. And you-

OK, OK. Can we stop there? Can we cut?

Yeah, stopping down.

Do we [unintelligible]-

Mark it.

K.

OK, now I wanna pick up on some stuff that you spoke about before. Would you have been able to go to college without affirmative action?

Well-

And did you feel that you were taking a place that belonged to someone else?

Yeah. I would say two things, that my interest in questions that have to do with affirmative action and equality really are a reflection of, of two dimensions of my background. One of them goes to my personal background. The other goes to my experiences at Yale. You know, I, can you stop for a second?

Yes.

Stopping down.

Let me-

Mark it.

OK.

So, the question is about [car horn] your relationship to affirmative action.

Mm-hmm. Yeah, I'm interested in, in affirmative action, really, for two reasons. One grows out of my personal background, and the other grows out of my experiences at Yale. In so far as my personal background is concerned, I'm deeply interested in affirmative action because I'm a product of it. I mean, I was fortunate enough to be raised by a very loving great-aunt and great-uncle who were like a mother and father to me, and they gave me everything that you could've expected and more. But we grew up on...my brother and I, we grew up on welfare in, in Southern New Jersey and initially I spent the first six or seven years of my education in a, in a segregated elementary school in Merchantville, New Jersey. And I went to junior high school and high school in, in Camden. Now, by the time I was in ninth grade, I was getting signals from the guidance counselors that, you know, college is not for you. You know, you're not the kinda guy that's ever going to learn how to do things like chemistry and, and calculus and physics. And, you know, you know, at the time I'd never heard of chemistry and calculus and physics and, and, and so it was, it was a little disturbing. By the time I got to high school, you know, they had decided that I couldn't take a full college prep load, and I was taking a lot of what were called industrial arts classes, whatever the hell they are. Now, what, what happened for me and the way things dovetailed in a way that worked was that I grew up in the '50s and '60s, and I graduated from high school in, in 1968 and it was the year, really, when affirmative action was becoming a national policy at colleges-

-and universities across country-

Whoops. This is great, but we ran outta film.

That's rollout.

OK.

So we're gonna-

Pick up from there.

-back up.

Mark it.

OK, so I'll tighten the frame a little bit.

Yeah.

K. Great.

And what we can do is pick up from high school.

Oh, you mean go all the way back?

Industrial arts.

Yeah, you were talking about the industrial arts stuff.

Mm.

Curriculum.

OK. Stop for a second.

Yeah.

Stopping down.

Mark it.

OK.

OK.

OK, yeah, so by the time I was in tenth grade, I was restricted to taking what were called industrial arts classes. I've never really been able to figure out quite what they were all about. And I was only allowed to take a, a very marginal number of, of college prep classes. But you have to remember what the '60s was like in, in America, what the late '60s was like. I mean, a lotta things were going on in America, and despite the things and the message that I was being given in high school, I, I really think that a lotta things came together to make me [car horn] think that there was no reason for me to any pay attention to what people were telling me in the high school. And I would say, basically, you know, you have to look first of all at what was going on in the, in the, in society. I mean, there had been urban riots throughout the '60s. There was a riot in Newark. There was a riot in, in, in, in Detroit, the riot in LA. Martin Luther King and Robert F. Kennedy were killed in the year that I graduated from high school. I mean, the, the, the civil rights movement was still a potent force in terms of the consciousness of America. There was a Black Power, Black consciousness movement going on. And all these things in combination with three other things, I would say, made a big difference for me. The first thing is that the, the one gift that my parents were able to give me that I, I think is really more important than anything else was they gave me the gift of self-confidence. They always taught me that I was no better than anyone else. But I was taught to believe and I always have believed that I was as good as anyone, anyplace, anytime on the face of this planet. And that gave me the ego strength to ignore the kinds of things that I was hearing in the high school. And I knew that it was possible for me to focus my energies and work hard. But my feeling is, looking back, oh-

Yeah, pick it up again.

OK. But my feeling is, looking back at-hold on, can I stop for a second?

OK.

Stopping down.

Mark it.

Just a second. OK.

OK.

Yeah, I knew that I was gonna be willing to work hard in college 'cause I had decided, because of all the things that were going on in society, that I wanted to somehow make a contribution and that I wanted to do something, that I wanted to make something out of my life. But the way I look at, at the way, the way, the way I looked at American life then, it seemed to me that, that there'd always been people of color, Blacks in particular, who had been willing to work hard. But working hard had never been enough to allow them entrance into mainstream institutions throughout American society. And that's why I had felt at the time that I was really lucky to be part of the generation that was going to be able to be the recipients of these programs that they were calling affirmative action. For me, the, the whole era of affirmative action was something that I saw as representing hope, as representing encouragement, and as representing a chance that American society was giving, at least in, in some kind of a way, for the first time in its history, to allow people of color to be in a position where their individual capabilities, their human promise could flower and blossom in ways that had never been the case over the centuries. And it was in that respect that I think my feelings about what was going on in that era dovetailed with this new range of social programs that opened up for the first time higher education to people of color. And without affirmative action there is no doubt that I would not have been able to go to St. Joe's. When I got to St. Joe's, I worked very hard and I wound up graduating number one in my department and that's when I wound up with the opportunity to go to Yale Law School. And so I went to Yale Law School feeling that I was on the crest, part of the crest of a, of a social movement and that American society was finally opening up in some limited ways to allow people of color and Blacks in particular to participate in all aspects of American life. And this was a first-time kind of thing. It had never happened before in America. And I felt proud, and I still do feel proud to be a part of that process. And that's why, in part, I found it so disturbing to find that those of us who had worked so hard against even greater obstacles to go to college, to go to professional school, when we got there found that we were stigmatized. And I wanna make one addendum here. You have to remember what it feels like to be stigmatized in an environment and then sort of edit back to other experiences you've had in life. I can remember being a sophomore and junior at St. Joseph-

Excuse me.

OK.

I'm sorry. We're rolling-

Mark it.

Oops, just a second. OK.

OK.

OK, yeah, you know, you have to remember that it's very disturbing to be in an environment like Yale Law School and find that people feel that there's some question about whether or not you belong there because you're a person of color. I mean, I would edit back in my own mind to the all-White dormitory house that I lived in at, at St. Joe's where, you know, I would work night in and night out and the White kids would come into my room and say, Hey man, you know you don't have to work that hard to get through this college. You know what I mean? You know, we have the tests. You can do this, you can do that. Now, a lotta those kids went on to law schools, and they weren't stigmatized at St. Joe's, they weren't stigmatized at law school. And, you know, I went...came, the number one student in my department, I go to Yale and I'm stigmatized. You know, that, to me, is disturbing, and that, to me, pisses me off because I know that it has nothing to do with who I am as a person any more than it has to do with who the other students of color are in these environments. But it has everything to do with how we're perceived in American society and the seeds of those perceptions are rooted, in my feeling, both in societal racism and in institutional racism, but they have little or nothing to do with the, the human promise of people of color in these environments.

OK, so now I wanna jump ahead to the brief that you helped write when you were at Yale. You told me that what you were trying to do was to stand the case, as it was being perceived widely in this country, on its head.

Mm-hmm.

So, can you tell me what you sought to do in terms of what you thought-

The camera's not on now, is it?

Yes.

Yeah. What you think-

It is.

[inaudible]

Can, can you turn off for a second?

Yes.

Mark it.

OK, just a second. K.

When you were at Yale, you had a very specific relationship to the Bakke case. Could you tell me about the brief that you helped write?

Well, yeah. While I was...at the same time that I was sort of coming to terms with the bitter realities of, of some of the experience of what it's like to be a person of color at Yale, the, the Bakke case was winding its way through the courts. And by my last year in the law school the, the court had decided that it was going to decide the case. So a group of us, including a Yale Law School professor, crafted a amicus curiae brief in the Bakke decision for the Yale Black Law Student Union. And in that brief what we tried to do was argue for a more meaningful, substantive conception of equal protection in contemporary America. We talked in terms of a genuine equality that really reflected the nature of the kind of multi-cultural and multi-racial society that we live in. And that brief has always served as a kinda starting point for me in terms of my own ideas about affirmative action and equality in modern America.

What do you think...what did you think was wrong about the way that many Americans thought about the Bakke case and affirmative action and reverse discrimination?

Well, I found myself wondering why it was that affirmative action was considered to be a range of programs that inevitably discriminated against individual Whites. I found myself wondering why it was that a range of programs that were conceived in response to centuries of brutal racial oppression in this country, why these, why these programs, why the debate around these programs didn't focus on the perceived needs and the perceived rights of people of color, and Blacks in particular. And I found it very disturbing that, really, the focus of the debate, rather than the range of people that had suffered these indignities over time, rather than focusing on them, the debate focused on middle class White guys like Mr. Bakke.

Now, what do you...do the rights that we enjoy under the Constitution come to us as individuals, or do they come to us as members of groups?

OK, let me, can I just think?

Yeah.

Stopping down.

Mark it.

OK.

Should law be color conscious?

Well, I think that if you're going to understand why it is that affirmative action is important in contemporary American society, you have to understand why it is. At the end of the '60s, affirmative action programs were created to begin with. I mean, the reality is that affirmative action programs were created to offset a range of institutional measures that existed in American higher education, that, [pause] oh-[unintelligible]

Cut.

Cut.

Stopping down.

I need to stop for a second.

Yeah.

Where should I pick up now?

At the beginning-

[inaudible]

-I'll pose the question to you again, that way you can get a good handle [unintelligible].

Mm-hmm.

Mark it.

OK.

Should law be color conscious?

Well, to answer that question, seems to me that you really have to look at the nature of the kind of multi-racial, multi-cultural society that we live in, and within that context you have to look at why it was that affirmative action came into existence at the end of the '60s, to begin with. I mean, affirmative action came into existence because for the first time in American history, institutions of higher education had made a determination that it was gonna be important to create a situation where the, the human promise, the individual capabilities, the individual potentialities of people of color would receive a propitious environment in which they could mature and develop and flower and blossom in a way that had never taken place in this country. And what institutions of American education had to do across this country in order, in order to make that real was to deal with a range of, of institutional measures that had to be built upon the normal admissions process in off-in order to offset a range of criteria called the tradition admissions criteria, that would have obscured the human promise of a whole generation of people of color-

-in this society.

OK.

That's a rollout-

So we ran out of film.

-on forty, forty-one, twenty.

Mark it.

[inaudible]

That's OK. K.

So, you were talking about how and, and...how affirmative action programs got instituted in the first place.

Yeah. I mean, at a certain point it became clear to the universities that there were, that notwithstanding the great strengths of their traditional admissions criteria, there were serious limits. Now, let's take a look at those limits. I mean, they've been much discussed but, I think, little understood over the years in, in, in this country. I mean, a lot has been said about the, the so-called racial bias involved in these criteria, and that certainly exists. It has to do with the fact that there are certain segments of the American population that were kept separate and distinct and had a different range of opportunities than other Americans. There's also a cultural bias that's related to and a complement of the, the problems indigenous to that. What's less talked about, whi-which is of an equal concern not just to Black Americans and other people of color, but also Whites, is the fact that there's a serious class bias with respect to those criteria. It's no accident that White kids in Beverly Hills, Shakers Heights, and Scarsdale do a hell of a lot better than White kids in Appalachia, Cicero, Chicago and South Boston. And affirmative action now comes on the scene with respect to a range of criteria that are limited in all these ways and one other way that I think is extraordinarily important but is usually overlooked. The criteria, the grades and the tests that are normally used are basically designed to do one thing, and even the admissions officials admit that it does this one thing in, in a kind of limited way. The design is to try to determine what they call a predicted first year average, what a person's grade point average is gonna be in the first year of college, or law school, or medical school. So, that's the context in which affirmative action comes on the scene. But what is the mission of affirmative action? Affirmative action is concerned about things much more important than what a person's grade point average is going to be in the first year of college. It's concerned about, what are we gonna do in America for the first time to make it possible so that over the, the term of a college and professional school career, people of color will be able to exercise, you know, their human capabilities and to participate and, and contribute in all aspects of American life in ways that have never before been the case. So, what we find is a range of progressive social programs that have a much more utopian message and, and underlying much more important core goals than the truncated vision that usually was a part of the application process, even insofar as White Americans are concerned. Can I stop here for a second?

Yes.

Yeah, stop.

Mark it.

OK.

I wanna try to personalize things a bit. Do the rights that you enjoy as a citizen come to you as an individual or as a member of a particular group?

I think, I think really in the context of American history that's really a very false distinction. I mean, obviously my rights come to me as a function of, of being an individual, but what does it mean to be an individual of color or Black in this, in this society apart from one's racial identity. The two are inextricably intertwined. And my individuality, to a certain extent, has been determined by who it is or what it is to be a person of color in the latter part of twentieth century America. And, in fact, it is precisely this reality that admissions committees around the country were responding to. And that's why they decided that one of the additional factors that they were going to have to begin to consider when it came to admitting students was their racial background. You know, this was not a decision that was made in a vacuum. It was a decision that was made with respect to a particular understanding of the nature of American history with respect to Native Americans, Mexican Americans, Puerto Ricans, some Asian Americans, and Blacks. And all these things taken together are a part of why affirmative action is important. [clears throat] But what affirmative action is really about is trying to expand our conception of what equal protection means in the latter part of the twentieth century. Can I stop there for a second?

Sure.

Yes.

[clears throat] I-

Mark it.

OK.

So, how does equal protection come into play with this issue?

What we're talking about is really just expanding our conception of what it means to provide substantive equal protection to all Americans. And what we're suggesting is that it, it's, it's gonna be important if all Americans are to be treated equally. That all the significant factors that play a role in their mobility through American society are considered, even if those factors embrace race, or gender, or class for that matter. And what's important about understanding how affirmative action works in this whole process is that, if you look at it this way, you're not talking about a range of programs that is giving Blacks and other people of color anything. You, you're not talking about a program that inevitably discriminates against the individual potentialities of Whites. What you're talking about are a range of programs that are designed to offset a specific set of institutional criteria that, for generations, had been discriminating against the individual potentialities of people of color. And something like that ought to be permissible in American society. I mean, those kinds of rational differentiations have been made in American society with, with respect to its admissions policies for much more mundane reasons. These admissions committees have distinguished between Yale alumni and non-Yale alumni to admit them. They have distinguished between people from the far West as opposed to people from the East. So, if they can do that, it seems to me that it's much more important for them to consider whether or not someone applying is a Native American, or someone who is applying is a Black American, to understand the historical context out of which, you know, their, their life experience grows. And these kinds of rational differentiations, it seems to me, are, are perfectly normal within the context of a society that's moving toward a meaningful concept of equality because they have nothing to do with impairing the rudimentary principle of individual merit as defined by the human promise. And that fact is what American affirmative action programs are all about, trying to create a situation where the human promise of people of color is realized for the first time in, in American history, and trying to do this in the face of a range of admissions criteria that have a much more truncated vision of what normal admissions procedures have normal...have, have usually been all about.

OK. I wanna throw this at you. What do you respond when people say, Well, other ethnic immigrant groups in this society have not needed special programs like this to make it; how come Blacks are different?

Well, I would, I would say two things when it comes to affirmative action. I think, to begin with, that it, it's, it's a, it's a mistake to dichotomize affirmative action to a Black-White issue. Affirmative action is much more and it always has been much more than a Black-White issue. It's an issue that involves Native Americans, it involves Hispanic Americans, it involves some Asian Americans. It, from the beginning, has always involved in a certain context White American women. And really what we're talking about is, in what context ought affirmative action programs to be permissible and what context ought they not to be. And to look at the experience of, of American immigrant groups, White immigrant groups, and for that matter other immigrant groups who've come to this country and to adjudge or to assess the performance of people of color in this society over time based upon the experiences of these other immigrant groups is really to compare apples with oranges. And let me tell you what I mean by that. I mean, let's,[clock chime] let's look at reality of the American experience. Let's look at the Native American experience, for example. The Native Americans were the only group of Americans that waged a three hundred-year war against White encroachment. The result of that war was almost virtual genocide and removal from their tribal lands. Mexican Americans were the only group of Americans that were uprooted from an ongoing modern nation, and they're the only group of Americans that, as a function of that, remain close to their original land base in Mexico. Black Americans were the only group in this country to experience two hundred, two hundred fifty years of, of, of slavery. And what I'm arguing is that all of these experiences are not only distinctive but they're cataclysmically different from the types of problems, which is not to undermine or not to deny that other immigrant groups coming to this country did not face problems. They did. The Irish faced problems. The Jews faced problems. The Italians faced problems. And I'm empathetic with respect to all those problems. But to suggest that the problems that they faced in mainland America are analogous to the problems that Native Americans or Mexican Americans or Black Americans, for example, is just a false analogy. And the two have nothing to do with one another in terms of understanding why it's important that affirmative action existing in temporary American, nor did it have anything to do with a profound understanding of the texture and fabric of American life over the centuries and what the consequences have been of the type of racial oppression that has existed here for some groups and not others.

OK, cut.

Stopping down.

Good.

Mark it.

OK, Jackie.

So, in terms of [car horn] unfair competition, where do you think the stigma belongs?

Well, I, I, I have several things, about two or three things to say about the whole idea of, of stigma. First of all, I think that this, the threshold idea that what it is about affirmative action that stigmatizes people of color is the programs themselves is just a mistake. And I think it reflects, first of all, a really hollow conception of what it means to be stigmatized to begin with because if you really look at that notion, what is it saying? The idea is that if not for affirmative action then people of color, let's take Blacks as, as an example, would not be discriminated [car horn] in, in, in contemporary American life. So, the idea is that, in theory at least, at some point in, in American history there is supposed to have been a time when Black Americans were not stigmatized. But let's look at the reality of the American experience. Whether you're talking about slavery or apartheid in the United States or post second World War Two de facto segregation, there's never been a point in time to begin with when Black Americans have not been stigmatized. Before we were stigmatized because we were excluded. Now we're stigmatized be-because we're included. But whether, whether you're talking about someone like W.E.B DuBois at the turn of the century who went to Harvard and studied-

-sociology at-

I'm sorry.

That's a rollout on-

Rollout.

OK, so we can begin-

Mark it.

OK, so you were talking about how Blacks have been stigmatized. [car horn]

Yeah, well, the reality is that before we were stigmatized because we were excluded, and now we're stigmatized because we're included. I think what we see really is a simple transformation of the type of stigma that people of color face in contemporary America, and that may be true, but that stigma comes not from affirmative action programs, I would argue that it comes from societal racism writ large, and institutional racism in particular. I mean, let's look at the experiences of Black Americans over the whole of this century. W.E.B DuBois was a great social scientist, a brilliant student at Harvard, a brilliant student at the University of Berlin, that did not translate into jobs in White universities for him when he returned from Europe. Paul Robeson was one of the greatest renaissance men that this country has ever produced. That, that did not transfer into him, once he graduated valedictorian from Rutgers and, and once he had been an excellent law student at Columbia, into a legal profession that was open to him. Martin Luther King went to school in the post-World War Two era, when he got his PhD in theology in Boston that did not translate for him into an open American society. So, my argument is that the idea that there's some reality to this stigma that's inherent to affirmative action apart from the culture of racism that exists in this society is an illusion to begin with. But let's look at this issue a little bit more deeply with respect to stigma. I mean, how is it that the one program in this country that for once in American history created a situation where the individual capabilities of people of color would be allowed to flourish and substantive equal opportunity would at least, in a piecemeal fashion, become a reality with respect to open participation of people of color throughout all dimensions of American life, how is it that the one generation in America for whom this society is supposed to be open finds itself stigmatized when, if you look at the experience of White Americans, generation after generation after generation over centuries of White Americans participated in rigged competitions in the academia and in the work place? Rigged simply because the human promise of people of color was either crushed and...or, or seriously repressed. And how is it that they never have been stigmatized and we are stigmatized by this range of programs that, in fact, only allow for us to participate in some halfway egalitarian fashion in the type of America that we live in the latter part of the twentieth century? I want to stop just for a second and...

Yes.

Stopping down.

Am I still talking too fast?

A, a tad.

OK.

Mark it.

[clears throat]

So, do Blacks of your generation in college have any reason to feel ashamed of having gotten in through affirmative action?

Yeah, I think the, the answer to that question is a definitive no. I think it's clearly the case that there's no reason for the beneficiaries of affirmative action programs to feel any shame or stigma whatsoever. In fact, in any sane society, people of color, Blacks in particular would receive these kinds of programs as a function of their constitutional right not to have their human promise discriminated against by an array of criteria that's not adequate to the task of really ferreting it out. It does seem to me, if there's any shame or stigma to be associated with affirmative action whatsoever, that it belongs in another place, and where that place is it seems to me clear. First of all, it belongs in...it, it belongs on the shoulders of the society writ large, because it's a society, any society that creates a situation where you have the type of brutal racial oppression that existed in this country, that causes after centuries there to be a need for programs like affirmative action, should be ashamed and ought to be stigmatized because of that, especially if they consider themselves to be the leader of the free world, all about equal and opportunity for all people, not just here but across the planet. Moreover, it seems to me if any individuals ought to be stigmatized as a function of affirmative action program, that of, of, affirmative action programs, that it ought to be those individuals who benefited from the egregious victimization of people of color over the centuries. And I would say that those people...aw, shit, I, I missed it.

We'll keep rolling. I wanna ask you, did you, flow with me, did you feel ashamed? Did you feel that you had an asterisk next to your name as someone who got to college and to law school through affirmative action?

Well, I felt, I felt that I...after I became aware that stigma was an issue, I felt that there were those who were going to make assumptions about me because I was a person of color. But my feeling is that that was the case in 1950 when I was going to a segregated elementary school in Merchantville, New Jersey, and that was the case in 1968 when I was going to a predominantly Black school in Camden, New Jersey, before affirmative action came into place. And I think that stigma would be there anyway, and it doesn't at all bother me in an existential sense because I think that stigma is very much a reflection of the values, the racist values of the general culture, and I think it says absolutely nothing about me or the other participants in these programs, people that are really benefiting from programs that do nothing more than allow them the opportunity to actualize their human promise for the first time in American history.

OK, cut.

Cut.

OK.

In thinking back to the decision on the Bakke case, what disappointed you about the thinking embodied in it?

Well, there were a couple of things in particular I'd have to say were very disappointing about the decision. I mean, first of all, it seems to me that in a sense the decision took place in almost a historical vacuum. I mean, here we have, arguably, the most important civil rights case since Brown, that's supposed to be about the nature, the inherent nature of affirmative action programs, a range of programs that were created to deal with legacies of, of, of centuries of discrimination, racial discrimination in this country. And the focus of the case is not the perceived needs, not the constitutional rights of people of color, but rather the perceived needs, the per...the perceived constitutional rights of a individual, middle class White American male. Now, there are problems with that and I think the problems with that flow into how this issue has been discussed in the media for years. And basic problem is that, really, we wind up discussing affirmative action in a historical context that suggests that apartheid can end on Tuesday and racism disappears on Wednesday. Now, if apartheid ended in South Africa tomorrow, no one would assume that racism would end the following day. And apartheid ended just a few short decades ago in this country, and it does not seem to me that the type of issues that are being discussed in terms of affirmative action in contemporary America really relate to the historical reality that made it, made it important that affirmative action programs exist in the latter part of the twentieth century.

OK, cut.

Stopping down.

K.

Mark it.

OK.

I want you to think about addressing this answer to-

[coughs]

-Black students, Black young people. Would you tell me what you think about the right and wrong ways are to think about race conscious remedies?

OK, yeah. Well, yeah. Ooh, I'm a little tired. Can we stop just one second?

Sure.

OK.

Mark it.

OK.

So, tell me what you think a helpful and true way is of thinking about these issues.

Well, you know, I don't claim to know the answer to all things, but I, I would say that one thing is clear when it comes to affirmative action programs. If you're trying to, to offset a range of, of patterns of institutional bigotry and institutional racism that has affected people of color for centuries in this country, the only sure way of doing it is focusing on the perceived needs and the constitutional rights of those people. You don't get at those solutions through looking at these issues through a prism of the experiences of people like Mr. Bakke. I mean, one of the central problems wrong with the contemporary debate on affirmative action is that really it represents a kind of Alice in Wonderland effect, and what I mean by that is that we wind up trying to focus on an array of issues connected to affirmative action which were designed to relate to the specific historical problems that people of color in this country have faced. Oh, I'm missing this, I gotta go back the beginning of that.

That's [unintelligible]

OK.

Mark it.

[clears throat]

So, let's begin with your Alice in Wonderland metaphor.

Yeah, OK. I think the problem is, one of the profound problems with the debate about affirmative action in contemporary America is that the, the contours of the debate are defined by what I would call a kind of Alice in Wonderland effect in that the rights of people of color to equal access and substantive equal opportunity in contemporary America are seen through a prism of the experiences of middle class White Americans. And there's no way to resolve the particular types of problems that people of color face by looking at the legal issues that address the concerns of folk who have benefited from that victimization. And that, again, to me, is a very disturbing reality when it comes to why I think many of us felt such great disappointment with the Bakke decision, because the core of the society's concern, after centuries of discrimination against Native Americans, against Mexican Americans, against Puerto Rican Americans, against Black Americans was not to resolve affirmative action with a view towards the needs and rights of people from these communities, but rather to focus on the perceived needs of an allegedly innocent White who wanted to go to medical school.

Great. Cut.

[inaudible]

That's [inaudible]