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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

Public schools cannot use race as a factor to achieve racial diversity, that's what the Supreme Court said today in one of the most anticipated decisions of this term. The ruling involves slightly different cases from Seattle, Washington and Louisville, Kentucky. School districts in both cities use voluntary racial guidelines to maintain integration. A noble goal, the court said today, but a violation of individual rights.

Many school districts around the country use similar policies, and critics worry that today's decision will accelerate resegregation. The Supreme Court decision is our main focus this hour.

Later in the program, we'll remember the woman who redesigned women's clothes for the workplace. Liz Claiborne died yesterday.

But first, race in schools. If you have questions about today's ruling or how it might affect your school, give us a call. 800-989-8255, that's 800-989-TALK. E-mail, talk@npr.org. And you can also join the conversation on our blog, that's at npr.org/blogofthenation.

And we begin with David Savage who covers the Supreme Court for the Los Angeles Times. He's with us here in Studio 3A. David, nice to have you in the program as always.

Mr. DAVID SAVAGE (Supreme Court Reporter, Los Angeles Times): Hi, Neal.

CONAN: More than 50 years ago, the court ruled that laws that segregated schools were unconstitutional in Brown versus Board of Education. Desegregation was deemed so important that federal court supervised dozens of bussing plans around the country, many of them highly controversial. How does today's decision fit in that context?

Mr. SAVAGE: Well, after a lot of those bussing plans ended, many school districts, particularly in the big cities, try to come up with voluntary guidelines or some sort of voluntary programs that would continue some sort of integration. Some school districts use racial guidelines for all their schools, which Louisville did, and some use them just for certain schools. For example, you might have a magnet school and you might say, you can't have more than 70 percent of any one race at this school, because the whole purpose of the magnet school, one of the purposes, was to maintain integration. And the school - the Supreme Court basically said today that you can't have explicit racial guidelines for assigning students.

If you have the 70 percent guideline and a white child says, I want to go to that school, and the school board says, sorry, you're going to have too many white students in that school or too many black students, you can't go to that school because of your race. But the court said today by a five-to-four vote is that's unconstitutional.

CONAN: Yet in school districts around the country since the end of those bussing programs, resegregation has happened almost across the board.

Mr. SAVAGE: Well, yes, that's right. It's just a product of segregated housing, you know, in a whole lot of cities, I don't know, the south part of the town may have a large concentration of African-Americans, the north part of the town has a larger group of whites, so those schools in those areas are segregated. And the court's decision today makes it hard, but I'd say not impossible for school boards to achieve some integration. They left open the possibility that schools could adopt some - this is Justice Kennedy speaking for himself...

CONAN: Mm-hmm.

Mr. SAVAGE: ...said that you could have a voluntary integration program that, for example, was voluntary on the student's part. What if you said that minority students from the inner-city schools can voluntarily transfer or be bussed to a suburban school that's white, that would be okay because there's no, sort of, cutoff or no exclusionary rule there. It would be truly voluntary on the student's part.

CONAN: And Justice Kennedy said that could be a factor, but that he thought that these cases, Seattle and Louisville, both went too far. And he is really the key vote in this case.

CONAN: Yes, absolutely. His - it's his opinion that all the school board lawyers will be reading now and trying to figure out what they can and cannot do, because he goes along with the majority in saying, these programs are -have what he called crude, racial guidelines. You can't have that. But he went on to talk about how integration is a good thing and that school boards can pursue policies that try to integrate the schools.

CONAN: And interestingly, it ended up that both sides ended up citing Brown versus Board of Education in an attempt to support their side.

Mr. SAVAGE: Yes, that's right. John Roberts delivered the opinion, and he quoted the Brown decision as saying, we want to get to a time when race does not decide who goes to what school, that you - we want to move to a non-racial system of assigning students. And he said, that's what we're saying is the law today.

CONAN: Mm-hmm. And the minority?

Mr. SAVAGE: The dissenter said, you're going back on the promise of Brown, because Brown was really about trying to bring about an integrated school system, an integrated society, and yours - you're basically telling school boards they can't set racial integration guidelines for each school.

CONAN: Now, what happens, as a result of this decision - obviously, this impacts directly on the cities of Louisville and Seattle - what about the rest of the country?

Mr. SAVAGE: Well, I would think that the rest of the country's school board lawyers are going to say, we can't have explicit racial guidelines for assigning students to any of our schools. If we have a guideline that says, you know, there's a limit, we can't do that. If we're going to have a racial integration policy, we need to find some other way to do it. So I don't think - it is not true that all school boards around the country have these polices, but many of them do. And I think in Los Angeles, for example, there are some magnet schools that have this kind of guidelines, and I think this cast out on them. I'm not sure that courts will strike down all those decisions because of the uncertainty of how to read Kennedy's opinion.

CONAN: We're going to hear from the attorneys in the Seattle case, and we're going to talk with the lawyer for the school district in just a few minutes.

But joining us now is Harry Korrell. He is with us from his office in Seattle. He represented the parents in the Seattle case and argued on their behalf before the Supreme Court. It's nice to have you on the program today.

Mr. HARRY KORRELL (Attorney for Parents Involved in Community Schools): Thank you. Happy to be here.

CONAN: Now, the court agreed with your argument that schools cannot use racial guidelines to achieve integration. Tell us what was the genesis of this suit?

Mr. KORRELL: The suit came about because the Seattle plan wasn't, in our view, designed to achieve integration, but rather to accomplish a predetermined racial balance. And then the result was that a number of students, minority students around Franklin High School and white students around Ballard and two other high schools, were not allowed entrance into their preferred and neighborhood schools. In our view, the school district's plan was turning Brown on its head and making specific admissions decisions based solely on skin color. And that seems, to us, unconstitutional.

CONAN: You understand the other side cites Brown versus Board of Education as well?

Mr. KORRELL: They do. They do. And I think the other side's view is - there's always some risk at characterizing your opponent. I think the other side's view is that Brown - the message of Brown was one of ends and not of means. That is the end was supposed to be this mandated racial balance in schools. The other reading of Brown is that the government needs to be colorblind or at least they can't make decisions based on students' skin color. And I think in the respect, I mean, both sides are fighting over the legacy of Brown.

CONAN: Fighting over the legacy of Brown. And in a way, you were saying that the individual rights of these students trumps the broader goal, noble as it might be, of integration?

Mr. KORRELL: I think that's right. And, well, and again, I'm leery of you using the term integration because that - integration is fixing segregation, right?

CONAN: Mm-hmm.

Mr. KORRELL: And in Seattle, it means the whitest school in the district, at which this plan applied, was over 35 percent non-white. It also applied at Roosevelt High School, which was 45 percent non-white. It defies logic to say that those schools are segregated and in need of integration. What was going on was a desire to have a particular racial balance. Good motive or not, that I think offense the Constitution.

CONAN: Let's get some listeners in on the conversation. If you'd like to join us, 800-989-8255, that's 800-989-TALK. E-mail is talk@npr.org.

Just to remind you, our guest David Savage the Supreme Court reporter for the Los Angeles Times. And with us by phone is Harry Korrell. He's an attorney for the Parents Involved with Community Schools. He was on their side and argued their case before the Supreme Court.

And let's see if we can get Jam(ph) on the line. Jam is with us from Wilmington - is that Wilmington, Delaware?

JAM (Caller): Yes, it is.

CONAN: Go ahead please.

JAM: Thanks for having me. I just wanted to ask about the historic context of this. I didn't read the whole decision, obviously, but I thought I read a quote by Clarence Thomas in a decision on concurrence that talked about how the Constitution needs to treat all the citizens equally. And if my history is right, isn't the Constitution the document that says African-Americans should be treated as three bits of people. And I thought we had the system that we had in the Brown decision and all these attempts to equal everything out, to make up for that historic imbalance. So, I guess I'd ask for a comment on that and how today's ruling might affect that kind of decision and what we're trying to do.

CONAN: Harry Korrell?

Mr. KORRELL: Sure. I mean, the caller has graded(ph) an important question. And the history of our government's treatment of racial issues in our country is an ugly one in the past, but the hope was that the Fourteenth Amendment fixed that. It was applied in the Brown decision. But if you read the Fourteenth Amendment and you read the Brown decision, it doesn't say that, you know, that government can't make decisions based on race, unless there's a good reason, or, you know, if the students are white, the rule is one way.

I mean, an important observation in the Justice Kennedy opinion, he points out - this is it, I think it's page 15 - his reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake. That is the heart of Brown, which is that government - one of the most offensive things government can do is look at you, decide about you based on your race. That's what we are fighting against in this case. We were fighting for the application of the language and meaning of Brown to students in Seattle. And to be clear, again, it's not just white students who are affected by this policy, it's minority students, too. And the parent's group is not just white but it's minority parents as well.

CONAN: And, David Savage, let me follow up by saying, Brown versus Board of Education was - said that segregated schools and segregated by law were unconstitutional. These are voluntary systems.

Mr. SAVAGE: Well, it was - they're enforced by the school board's policy, so that's why the court was, you know, if it was truly voluntary in the sense that students could choose to go or not go, then that would be voluntary in the student's part. This was a school board policy that, sort of, was a legal rule. So that's why Harry Korrell could attack it, because that school board policy, that school board rule said, sorry, no more white kids or no more African American kids at that school.

CONAN: Jam, thanks very much for the call.

JAM: Thanks for having me.

CONAN: And, Harry Korrell, congratulations. Thanks for your time today.

Mr. KORRELL: Thank you. Happy to help.

CONAN: Harry Korrell, an attorney for the Parents Involved with Community Schools. He presented oral arguments on their behalf before the Supreme Court. And his position prevailed.

When we come back, we're going to be talking with the lawyer for the Seattle School District, whose position was not upheld earlier today. Also David Savage will still be here with us.

If you have questions about today's decision and its meaning, give us a call, 800-989-8255, 800-989-TALK, email us at talk@npr.org.

I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

Later this hour, we remember the woman who dressed a generation of working women. Liz Claiborne died yesterday.

Right now, we're talking about the Supreme Court's decision on race in schools and how it might change the way public schools decide who goes where. Today's decision came in a five-to-four vote. The majority rejected school diversity plans that take into account a student's race. The case involved two school districts in Seattle, Washington and Louisville, Kentucky. Plenty of other districts around the country would be forced to reconsider their own policies, too.

David Savage is with us. He's Supreme Court reporter for the Los Angeles Times.

Just a few - if you have questions about today's ruling or how it might affect your school, give us a call 800-989-8255, e-mail, talk@npr.org. And you can read what other listeners have to say at our blog, npr.org/blogofthenation.

Just a few minutes ago, we spoke with the attorney for Parents Involved with Community Schools.

Joining us now from Seattle is attorney Michael Madden. He represented the Seattle School District before the Supreme Court. And thanks for being with us today.

Mr. MICHAEL MADDEN (Attorney, Seattle School District): You're welcome. Good afternoon.

CONAN: And you must be somewhat disappointed by today's decision.

Mr. MADDEN: Well, disappointed to a certain extent, but not completely. As you know, the court, by a five-to-four majority, did uphold the ability of schools to consider race in assigning students. And unfortunately, was not able produce a majority with any clarity as to how you can do that.

Mr. SAVAGE: Mm-hmm. So, you take comfort in Justice Kennedy's suggestion that there might - race could still be a factor under certain circumstances?

Mr. MADDEN: Well, I think Justice Kennedy, in fact, goes further than that. He quite clearly says that there is a compelling interest in achieving integration in the schools even when the condition that you're trying to address is not the product of past purposeful segregation. And then goes on to describe a two-tiered approach, whereby one can have - use means that are not overtly racial, such as drawing attendance zones, or locating schools, or program placement. And if those measures aren't sufficient, he goes on to say that one can - in a more targeted way than he felt was done in Seattle and Louisville - use measures that are overtly racial.

CONAN: Yet you argued before the justices that the Seattle racial assignment plan was not a, quote, "a system," unquote. The purpose was to have schools that have become diverse through integration efforts not straight too far from the community's demographic, because, you said, we're trying to prepare students to live in those communities. Are you worried that today's decision will force some changes on that?

Mr. MADDEN: Well, in Seattle, the issue is somewhat academic on that score, because the plan in question haven't been used since 2001. But nationally, certainly people are going to have to put their heads down and consider what Justice Kennedy has said. Evaluate that in light of the opinions by the other justices, because there clearly is going to be continued litigation risk for districts. But to look at what Justice Kennedy has said, carefully, and see what measures might be employed to try to achieve or preserve integration in the case of Seattle.

CONAN: Let's see if we can get another caller on the line. And let's go to --this is Matthew(ph). Matthew with us from San Francisco.

MATTHEW: (Caller): Hi. Thanks for taking call.

CONAN: Sure.

MATTHEW: You know, it's just essentially wrong to discriminate against kids on the basis of race. And the Seattle School District attorneys like to trot out that, oh, you know, only 10 percent of kids were turned away, you know, based upon their plan back in 2001. And 90 percent got to the school of their choice. However, those 10 percent represent thousands of kids who are basically denied the opportunity to go to the school of their choice.

And I grew up in Seattle in the '70s, and I went to a very diverse middle school. And I was really glad that I was in that type of setting. But the minute that I asked to go to a high school on the North End of town where they actually had a educational program that I was very interested in, my father had to be - present our credentials, quote, unquote, "to the PTA board." He was promptly labeled a racist for having his white kid went up to the North End of town where the white kids live and go to school already.

And, you know, it's just that for - this is what the case is about. This is what the ruling it's about. It's about the kids and about getting a fair chance at an education that they desire. And then it's not supposed to be based upon the color of the skin. That is just fundamentally wrong in America even today.

CONAN: Michael...

MATTHEW: And I very much support the ruling today.

CONAN: Michael Madden?

Mr. MADDEN: Well, there are multiple parts to that question. You know, as the caller points out, Seattle has a long history of employing integration measures. And responding in part to what Harry Korrell had said earlier, it was not always the case that Seattle schools were, you know, in general, diverse. And in the 1970's, which is probably when the caller was in the Seattle school system, of course the (audio gap) found its way to the Supreme Court the first time because of a state law that attempted to outlaw bussing for integration purposes. And, yes, Seattle has had this issue. And I would never discount that people feel that they have been harmed when they don't get the school assignment of their choice. And particularly, if that's when - the result of racial classification, you know.

On the other hand, as Justice - and this maybe where Justice Kennedy is coming from in saying, you know, it's not unconstitutional if you have a racial purpose, meaning to achieve integration. But if you don't use an overtly racial means to get there, meaning have to draw, for instance, an attendance zone, or placing a particularly attractive program in a, say, a school that in a predominantly minority neighborhood.

CONAN: Which is a fairy common practice.

Mr. MADDEN: True.

CONAN: Yeah. But, what about Matthew's point that it's about the kids and their rights?

Mr. MADDEN: Well, it is about the kids and their rights. But the question is, you know, in the end of the day, do you avoid the situation that he describes? Of people feeling like, well, you are a racist if you want to go to a North End school. You avoid that if you fully integrated schools where you don't feel that there is a great disparity in the quality of those schools based on their racial makeup.

CONAN: Thanks for the call, Matthew.

MATTHEW: Thank you.

CONAN: All right. Bye-bye.

And let's see if we can get Paula(ph) on the line. And Paula is with us from Willow Grove, Pennsylvania.

PAULA (Caller): Hello.

CONAN: Hi.

PAULA: Thank you for taking my call.

CONAN: Sure.

PAULA: I'm the product of an interracial marriage, meaning, I was raised in a suburbs the Philadelphia and went through a predominantly white school. I guess my concern is for my, you know, children that are growing up that are labeled black. How is this going to affect them having equal education just like with the different programs, you know. In the suburbs, you have honor classes that may not have in the city. You have art classes and music, and just things that many of the inner city schools don't always offer. How - I agree with the decision, but I'm concerned on how it's going to affect the future generations of minority children?

CONAN: Michael Madden, you want to take a shot at that?

Mr. MADDEN: I think it's, unfortunately, too early to tell. I mean, the scope of what Justice Kennedy would allow if his is indeed the controlling view here, you know, needs more than a four-hour study. He clearly thinks, and really the breath of difference between the four members who - of the court-assigned Chief Justice Roberts' opinion and the Kennedy opinion is summed up by looking at the end of the two opinions, because clearly, the Roberts group was willing to say that problems of racial disparity that are not the product of de jure action by the government are no business of the government.

CONAN: De jure meaning legal action of the government, by law.

Mr. MADDEN: That's right. That's right.

CONAN: All right.

Mr. MADDEN: And Justice Kennedy, and we're grateful for this, dramatically disagrees.

CONAN: Paula, thanks very much for the call.

PAULA: Thank you.

CONAN: All right. Bye-bye. And we'd like to thank Michael Madden for his time today. Thank you.

Mr. MADDEN: Thank you.

CONAN: Michael Madden, attorney for the Seattle School District who presented oral arguments on their behalf before the Supreme Court, which did not find in support of his case.

David Savage, here's an email question from Tom(ph) in Saint Louis, Missouri. Will the Supreme Court ruling affect public university admissions?

Mr. SAVAGE: I think not. On of the surprises today, I say it's mild surprises, was that a lot of us were following this case, thinking that this could be the first move of John Roberts and the more conservative court to overturn affirmative action in colleges and universities. And Roberts began his opinion by talking about the decision four years ago, and saying that higher education is a unique circumstance. And colleges and universities can't give great weight to diversity and consider a student's race in that context.

So I took it that there's nothing in this opinion that would lead you to think that they're going to go back on where they were four years ago. Four years ago they said you can't have a sort of quota-like program that assigns all minorities students certain points, but you can consider race as a sort of plus factor as long as you individually evaluate the student as a part of an affirmative action program, and I think that's where we still are.

CONAN: Let's get Jim(ph) on the line. And Jim's calling us from Charlotte, North Carolina.

JIM (Caller): Yes, I was wanting to ask your guest. I mean, you know, for the average middle-class American, which I happen to be a part of, the ruling matters absolutely nothing to us. I mean, what's it mean? I mean, you know, I'm still stuck in the same socio-economic class that I'm stuck in; I cannot afford to move out of my school district to a better school district. I wish I could, but I can't.

So in essence, what's it mean to 80 percent of Americans who are middle-class -I mean, the ruling means nothing to us. We are still stuck in the schools that we must improve, and those schools, whether racially balanced or not, are the schools that we're stuck with. You know, if I was a little wealthier, I would do what most of my friends do, and that is put my kids in a private school that's 95 to 100 percent white and be done with it. I mean, so what's the ruling mean to us?

CONAN: David, what do you think?

Mr. SAVAGE: Well, the caller's probably correct that the ruling doesn't mean too much for him and for a whole lot of people in most city school districts. If there's anything that'd be encouraging from the opinion, it would be Justice Kennedy talking about how it's important to have integrated schools and that to some degree, that would sort of call for voluntary arrangements that would allow parents to transfer their kids to, from their point of view, more desirable schools. Some cities have tried that, I don't know whether Charlotte has tried it and after the bussing program...

JIM: Well, certainly, we have school choice plan.

CONAN: Mm-hmm.

JIM: But it doesn't matter. I mean, I can take my kid in any school in Charlotte, but the fact is I still have to provide transportation, which do I want to drive an hour to South Charlotte?

Mr. SAVAGE: Right.

JIM: Probably not.

Mr. SAVAGE: I see. So the - you have a school choice plan, but the parents have to provide the transportation.

JIM: Yes, it's out of their school choice zone. Yes.

Mr. SAVAGE: I see.

CONAN: Mmm.

JIM: And you usually have about three to four schools, but thank you for taking my call.

CONAN: All right.

Mr. SAVAGE: Certainly.

CONAN: But extending on his point, there are critics of this decision who will say this will just accelerate - encourage people like him to move from presumably a mixed area to a less mixed area. To, in fact, encourage resegregation.

Mr. SAVAGE: Yes, although - and, Neal, you remember that was the criticism of the bussing programs all through the '70's, that the mandatory efforts to desegregate the schools, encouraged, one way or another, a lot of white parent to leave the city entirely. And so, they seemed, in some ways, the backlash made segregation worse. So, that's an old problem.

CONAN: David Savage of the Los Angeles Times. We're talking about today's Supreme Court decision on schools and race. You're listening to TALK OF THE NATION from NPR News.

And David, actually, I wanted to ask you about another decision that the court issued today. We've heard a lot about the court's value of precedent in the past and how difficult it is overturn precedent and how important precedent is. And today, a precedent of 96-year standing thrown out by the Supreme Court.

Mr. SAVAGE: Yes, they overturned a very old one. It's called the Dr. Miles, who - you'd have to be an expert in antitrust law to know it. But if you're a consumer, you're familiar with it. If you look at a new car and it says manufacturers' suggested retail price. The reason it says suggested is that manufacturers are not allowed to fix or set a retail price.

Independent retailers are entitled to discount. And manufacturers can't, by contract, enforce fixed prices. The court threw out that rule today and said, we're going to allow manufacturers to basically market their products and set the prices they choose. And I think this will actually show up, a lot of consumers will see this with different products. Certainly not all manufacturers will do it, but some will. They would want to say, we want to have full service retailers, with showrooms, displays...

CONAN: Mm hmm.

Mr. SAVAGE: ...and we're going to set a higher price and forbid discounters. And so, I think people who like to buy on the Internet or whatever, may find themselves at least in the future with some products that they can't get them at a discount.

CONAN: Now, why isn't that an antitrust problem?

Mr. SAVAGE: Well, the court's view is that competition is really between brands, not within the brand. If you don't like a watch that's got a certain high price, basically buy another watch. I mean that's the...

CONAN: Mm hmm.

Mr. SAVAGE: ...that's the logic, and that the logic of it is, this is a five-to-four decision that there's competition between manufacturers and between brands, but we're going to allow the manufacturer to sort of market and market his product the way he chooses, and if that means setting a fixed price of $400 or $20 for that item, they may do so.

CONAN: And that can enforce it. But this - would that still hold if you're, if you manufacture that product that absolutely dominated your market?

Mr. SAVAGE: No, no. If you were the only, if you're Microsoft and you're the, you dominate the market, then that would be anticompetitive, because the consumer wouldn't have any real choices. But for most consumer products - golf clubs, tennis rackets, watches, little computer gizmos, there are plenty of -and they're saying, now on, manufacturers may choose to set fixed prices.

CONAN: A price floor.

Mr. SAVAGE: A price floor, that's correct.

CONAN: And, interesting, five to four, John Roberts came when he testified before the Senate Judiciary Committee, he said, he would be working more and more towards getting the court towards consensus. Towards getting away from this five-to-four decisions, which are often not definitive.

Mr. SAVAGE: It certainly the case that this term ended on a series of very bitterly divided five-to-four decisions. The four liberal justices sort of voted in a block. And so, at least, to that extent, Robert says not brought about harmony and unanimity.

CONAN: Also, that today's decision on these price floors, one of several decisions in this term that seem to be coming down in favor of corporate interest.

Mr. SAVAGE: Yes, I think I counted 15 this term that made it harder to either sue businesses, or harder to win damages from business. It was a very good term for businesses and corporations.

CONAN: And, we can take from that, what?

Mr. SAVAGE: Well, some of those decisions had a fairly big block of justices. They really are skeptical of antitrust laws. They're skeptical of business regulation. They're skeptical of big lawsuits. But it's also, Sam Alito, in some of the really close cases, is a more conservative person than Sandra O'Connor, and created a five-member majority for some of these pro-business decisions.

CONAN: So, you get to take the rest of this summer off, David?

Mr. SAVAGE: No.

CONAN: No?

Mr. SAVAGE: Actually not.

CONAN: Oh, that's a bummer. David Savage covers the Supreme Court, and I guess other issues at the Department of Justice for the Los Angeles Times.

Mr. SAVAGE: True.

CONAN: You know this Gonzales thing, they make keep you here all summer, David.

Mr. SAVAGE: I fear that. Yeah.

CONAN: We'll be talking to him when he does. David Savage of the Los Angeles Times with us here in Studio 3A. Thanks very much.

Mr. SAVAGE: Thank you, Neal.

CONAN: Coming up, the - she put the power in power suits. Liz Claiborne died yesterday but her shoulder pads live forever. If you were wearing Liz to your first board meeting, give us a call. Our number here in Washington is 800-989-8255, 800-989-TALK. E-mail us talk@npr.org.

I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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