Supreme Court to hear case on affirmative action

>>> welcome back. i'm melissa harris-perry in new york. with laryngitis. on wednesday, the supreme court heard arguments in fisher versus the university of texas . that outcome of that case could eradicate the use of affirmative action in the college admissions process as we know it. at the table, kenji yoshino , professor at nyu school of law , the acting president and director and counsel of the naacp legal defense fund and back with us chloe angyal and robert traynham .

>>> talk to me about the history of affirmative action . where does it begin and how do we get to where we are today?

>> because this case is coming out of texas . the history should begin with sweat v painter. it cleared the way for brown versus board of education . it was in the days where texas stood for exclusion and didn't want african-americans to go to the flagship institution. thorough good won that case and we got brown. in that case, the court recognized that the flagship institution in the university of texas was superior to the alternative. that was an important marker and in the cases that followed, including the case which was a challenge to affirmative action out of university of california , the court said diversity could be a plus factor, race could be a plus factor but -- that's how it evolved until we got to the university of michigan cases in the early 2000s .

>> i want to go back on the texas thing for a bit. it's lbj who initially makes this claim for affirmatively furthering fairness. it's insufficient to say you're now equal. he has this language about taking off the shackles and go run, you have affirmatively further it.

>> i think that's exactly right. the we is what does equality require? it grew out of our history which imposed specific burdens on members of our society. slavery, racism, jim crowe . they will had impacts. lbj in the '60s is saying how do we move forward? you can't let the shackles down and think we have equality. you have to work to make equality. that's where the concept was rooted initially.

>> this notion though of a reparation or repair tiff as foekt affirmative action goes away in michigan . the michigan cases which are ultimately up for debate now, tell us about those.

>> absolutely. there are two rationales under the constitution, one is the immediate -- the other one is the diversity rationale. there's been a movement away from the remedial rationale towards the diversity rationale. harvard law professor says it's a better move because it makes people, minority groups , look like they are burying gifts rather than grievances which this language that i love. like she does, i feel like we've moved too far from the remedial aspiration. but you're exactly right. once we get to the michigan case, 2003 case we have the diversity rationale being asserted by the university of michigan law school . the united states supreme court for the first time upholds under the diversity rationale race conscious affirmative action program by a majority of the court. this creates a safe harbor . schools know what they need to do to pass constitutional muster. the reason it was upheld was because it was a holistic consideration of the individual. it could have looked at race neutral alternatives. it treated every individual as an individual. it didn't have a set aside . i want to emphasize that point as well. i think that people often associate affirmative action with quota.

>> quotas have not been constitutionally permissible in private institutions for years. title vi of the civil rights act moves -- the equal protection clause . the institution receiving federal funds would run afoul of this if they engaged in a quota. they've not been since 1978 .

>> there's no sort of black seats or brown seats set aside in a classroom that said this language of gift and grievances still always concerns me because it feels to me like the object is still the white statement in the classroom. right? my body is useful in that classroom because i create diversity for that white student to therefore, be a better fortune 500 ceo someday, right? rather than the sense that there's something valuable in ij indica educating those bodies themselves.

>> i think that the university, at best can be broader than that. if we have a diverse classroom, then everybody benefits from that. every single person . racial minorities benefit, white students benefit from it. i think that the critique that you're raising is one that many individuals hold, which is it requires racial minorities to perform identities in a certain way. you're being admitted because you're bringing diversity to the table, you better --

>> what if you let robert traynham in and he's african-american but he's a republican. he has --

>> what i love about this is that there's a theory of diverse diversi diversity-based affirmative action . back in a little known concurrence and case back in the 1980s where he says -- this is a direct response to justice thomas ' claim if you bring whites and blacks together, they're not going to be that different. right? and stevens' rejoin der is yes, exactly. but they're not going to know that there are all these underlying -- they're not going to understand that there's a broad range of diversity within the racial group unless they're rubbing elbows with each other. we don't understand until we're in the same room or at the same table.

>> i hate to pick on you. there's this notion of performing your identity for me is part of what's distressing about the diversity narrative. robert, typically, this has tracked not along partisan lines but ideological lines where more conservative individuals have said they're against affirmative action . as we're looking at what is likely to be the end of affirmative action in american higher education , there any distress that you feel about what that might mean for diversity in our classroom?

>> this is a tough one for me for numerous reasons. number one, let me say i believe in affirmative action . all the races have historically been oppressed. to use lbj 's specific words, to your point, you cannot unsack will someone and expect them to run a race immediately. that can't be happening. this is a struggle for me because if i understand the fisher case, she has a point. her point is, i think, i'm qualified, i got accepted to all these other schools. but just in the process, i couldn't get accepted in the university of texas because of an underlying quota system or point-based system that basically said my understanding is university of texas has 52,000 students. out of those 52,000, 5% are black. that doesn't represent texas . texas has 12%. hispanics 18%. statewide is 39%. what texas i think is trying to do is trying to diversify it's community through a point-based system, right?

>> not -- it's actually that they have a race blind policy system for the vast majority of the students. the top 10% of all high school graduates no matter what high school you graduate from --

>> from texas ?

>> right. gets into texas state system but not necessarily the flagship. is that right?

>> the top 10% gets in. they get guaranteed admission. this gives you diversity because of the residential segregation and segregated schools. you have many racially identifiable schools. it gives you a measure of diversity. after the hish mitsch cases were decided, texas decide thad it wanted to take on some of what the court said was possible to consider race for the remaining graduates, together with a multitude of factors. so it's decidedly not a quota-based system or specific points system. there are academic factors and other factors, leadership, do you come from a single parent home. did you work while in high school in.

>> you get points for that. my understanding, for your leadership capabilities or potential, that's graded on a point system per se , is it not? how do you grade that?

>> i think it's a range of factors. -- texas is not shooting for any set number of african-americans or latinos.

>> what fascinates me is that abigail fisher , the plaintiff in this case is going to the court. she's a white woman . we know that of course, that gender diversity has been an incredibly important part of the affirmative action there.

>> that's true. i want to get to that in a second. i want to take issue with the top 10% program is race mutual or race blind. it absolutely is not. we are talking about 81% of the entering the class at ut austin came from the top 10% program. that leaves 19% of spots for people whose admission are being decided on other factors. if you look at something like the dallas independent school district where only 5% of students are white, so 95% of the students are nonwhite, african-american students who took their sats or acts. 49% tested college ready. the disparities in education and resources start long before you're applying to admission for u.t. austin . i think yes, the tpp program is race mutual in theory, in practice. it is absolutely not.

>> it's race neutral but also problem at cli gives us a state in racial segregation . if you're at the top 10% of predominantly black school, you still get admission but there's actual value in residential segregation because that's the only way that a 10% program can create racial integration . i shouldn't be talking this much. i have so much to say. when we come back, more on affirmative action and if race-based affirmative action isn't going to work, is there a better alternative? that's next.