tavis: good evening from los angeles. i'm tavis smiley. tonight a conversation about the supreme court decision that was handed down this morning what might be a forecast for the decision later this week. we'll talk to kimberle williams crenshaw and justin levitt. we're glad you've joins us. a conversation about this week's scourlt decisions coming up right now. >> there is a saying that dr. king had. he said it's always the right time to do the right thing. i try to live my life every day by doing the right thing. we're only half way to

completely eliminate hunger. we have a lot of work to do. wal-mart contributed $2 billion to fight hunger. if we work together we can stamp hunger out. >> and by contributions to your pbs station from viewers like you. thank you. tavis: this morning eleven marriage cases were waited supreme court decisions including are firm ma tive action and legality of the defense of marriage act. earlier a handful of decisions were handed down including a limited decision on affirmative action. other landmark decisions are expected later this week.

tonight i'm pleased to be joined by two great guest. kimberle williams crenshaw distinguished professor of law at ucla and columbia. and also joined by justin levitt. he is an expert in election law focusing on election administration and redistricting. glad to have awe both on. >> it's a pleasure. >> i want to start with a broad question before we get to specific cases. so we're at this moment now for the next five years we're going to be celebrating the 50 ths an ver si of so many moments of the ivil rights era. the i have a dream speech this summer and the freedom rides understand a year or so or later this year the selma march.

and then next year we got to voting rights act and then the civil riots act. we have a lot of an verries over the next five years. it's interesting to me that 50 years after these events, all of these civil rights cases are coming before the court if that makes any sense to you. what should i and the audience make of that that all these cases now are being heard 50 years later? >> these cases are case that is more orless represent the question of whether in celebrating 50 years since all these laws were passed have we really gone far enough or have we really accomplished as much as we think we should have? to a certain extent all these cases are about how much is enough. none of them are ability we've arrived. so the supreme court itself acknowledges there is still societal discrimination. in many cases there is still a

recognition we haven't fully integrated the schools. there is some degree of unfairness nth work force, etc. but now the question is are these methods, these remedies for discrimination creating more problems than they are actually worth? have we done enough? >> one of the standards for releasing school districts from federal supervision is have we eliminated discrimination to the extent practical, not root and branch. this is a debate about should we continue pushing forward with active intervention or has the intervention become the new racism. people believe now the remedy is more of the problem than the problem itself. >> tell me why it is that just ten years after sandra day oh conner says we shouldn't be

discussing affirmative action, we shouldn'tmessin around with this for 25 years. i think that means there are 15 more years according to justice oh conner before we come back to this. how do we get here just ten years later? >> one thing we have to recognize what we think about today in relation to the past is many of these cases are part of long term strategies. the civil rights organizations of today are largely those basing their strategy on the civil rights organizations of yesterday. so center for individual rights, etc., these are the organizations bringing these cases. this say long term strategy. many were disappointed with bruter. they thought that would be the death nail to affirmative action. when gruter came out it was

we're going to continue to find sympathetic plaintiffs, particularly tune nist i can policies we might be able to use a new majority that seems to be willing to pull the plug on affirmative action. it's a long ep pick going back and foth. each time a hope it's going to be over with and each time the court gives a little and takes a little. many people thought this could be the end of affirmative action. they didn't get that far in this case and the court surprisingly to a lot of people held the compelling state interest in diversity. what they also did was heighten the standard for university of texas and now a lot of other schools in order to prove that this was narly taylored meaning there is no other way they could achieve a substantial amount of diversity without taking race into account.

tavis: if you knew you were going to punt and i shouldn't say punt in reference to our supreme court justices. if you knew you were going to kick it back down to a lower court and 7 to 1 at that. everybody is waiting for this big decision and the answer is we're kicking it down to a lower court. why take the case if that's what you're going to do? >> i think you find a lot of negotiation going on. the case was argued in october and today we get a discussion. there was a lot of discussion in that interim period. have you two strong voices saying we're not going to have anymore period. have you the rest of the court and justice ginsberg saying what you said ten years ago this is fine we shouldn't be talking about it. i think there was a lot of negotiation behind the scenes about what the standard was

going to be. how much consideration of race was good enough. how much the university of texas could say it was considering race to be good enough. and in the process of that negotiation what they found they could agree on is we'll send this back and sy if we get a better answer in the court of appeals. tavis: that's a charitable way of saying this ain't the case they want. for those who are more right thinking we want to act like our supreme court isn't political. we know what this divide is on the court. so then what are the conservatives on the courlt case and r, the right what are the liberals looking for 134 >> for a case without as many problems as this presented. this plaff came with a lot of hurdles. she has to prove like all plaintiffs have to prove at some

point that she was injured. abigail fisher who applied to the university of texas and was turned down finished her studies at lsu is out in the working world, has to prove what university of texas did was harmful to her. and university of texas says whether we considered race or didn't consider race, you weren't going to get admitted anyway, didn't matter. for the conservatives to rule taking this case as the case where somebody got done wrong may have been a bridge from the facts too far. they are looking for something more sympathetic of a plaintiff and where the educational system misstepped in a bigger way. texas decisions based on race were knew answer. they took each individual into account had is what the supreme court said ten years ago you got to do. they may be looking for a government enltty that uses race

far more for a proxy than other stuff. tavis: on the other side, what case to the extent they have to deal with this and in this society multiculture, multieth nick america ever, it's going to have to be dealt with some place, what's the optimal case they were looking for 1234 >> in ways texas was optimal for them because it featured a person that couldn't say this was an injury to me. the standing question all it's about what is the injury to you that university of texas race conscious admissions when there is no evidence you would have goten in at all. what is sobering is they didn't say anything about the standing question but more orless confirm the idea she has something to complain about. her dignity was undermind by

having a compete in a system which race has some kind of value even though she might not have gotten in. so the court has moved in a direction to allow white plaintiffs to make arguments even though they can't show in a reverse discrimination case. one might have thought this could have been the case if they were to get any swing voters saying there is a difference between having a race conscious program and any individual being able to claim race discrimination. and they weren't able to do that. i think in the next generation of cases what might be most optimal for the liberals is first of all, a case where the university or other entity has done the same kind of thorough investigation of the need for diversity. and the university of texas did a pretty good job. but also showing they tried race

neutral alternatives and they don't provide the substantial amount of diversity that is necessary. they are going to have to jump through some evidentiary hoops to show we can't get there without race. >> there is another thing that the left wing of the court might have been looking for and that is company. justice cagen was recused from this case and she had to is it this one out. she's a former law school dean. so she knows the challenges in pulling together a diverse class from all sorts of places. it you may have been the strategic decision was let's is it this out until we have more support on our side of the issue. tavis: let's talk about the peppeding decision on the voting rights act. >> the voting rights ack is based on the notion that there is some jurisdictions because of a history of discrimination against voters have to make sure

that any change that they make is taken before a district court or an administrative decision at the justice dement. many of these states have bristerled thund for sosm time, the concern being this was based on what happened a long time ago. we don't do this anymore. and it's interesting the states are making a kind of dignitary harm like fisher is 345euking which is we're -- making which is we're being carved out of the whole country as being states that have to carry this history of race discrimination. and squenltly this dignitary harm to the state is something that shelby county is arguing against. they are arguing even if it was constitutional way back in the 1960's. every time congress

reauthorizes, they reauthorize it not based on current events but based on this long term history. the question is whether or not the voting rights act is still constitutional with respect to those states and whether the time is over and these states should be treated the same as all others. they haven't made a decision about that yet. we were talking about what we think might happen there. >> i'm one of the optimist here. this is a congressional decision to make. a lot of power is given to congress by the constitution. justices who say we read the words of the constitution. says you can't discrimination based on race in the voting process and congress decides how we enforce this provision. it's in text. when congress reauthorized in 2006 was 98-0 in the senate including alabama , mississippi smksmk and georgia. all the senators said we may be

brister ling a little bit but this is good medicine. and 39-33 in the house which included more than a majority of every single delegation in the country including mississippi alabama and georgia and south carolina. so congress knew what-doing in 2006. you add that to the fact it's not just based on 1965. the formula basically says if democracy was broken, if less than half of the eligible public was participating in the 1960's and 1970's. if we have a majority rule system and the majority is not playing then you have to come to the fed for specific approval before you change your election laws. if a state has been good they can get out from thund. there is bailout that says if you've done right for ten years you can ask a court to let you out and every state that's skds have gotten out.

the only folks left haven't asked to be let out or can't get out because they haven't done right for ten years. and so the coverage this strong medicine is applying to the jurisdictions we have concern still. tavis: we've been talking about the voting rights act. this particular provision we will get a decision on later this week about what happens to the voting rights act. john louis from georgia, the last living persons from king. if the court strikes down this provision it's time to go back to the streets. is it that serious? >> i'm partial to the idea that much of what this court is doing is eating away at the fabric of civil rights protection. we're celebrating to a certain extent the fact that firner didn't go down exactly the way

we thought. but they are establishing a standard that it's not entirely clear how different universities are going to meet it. the same might be happening with striking down the voting rights act. there is a sense in which the urt is moving about like termites. they are eating at the structure of civil rights proo text and it doesn't really support the kind of aspiration that is it did when it was created. i do think that there is a need to confront how serious these assaults on the basic infrastructure of civil rights protections actually is right now. tavis: we've talked about affirmative action sent back down to a lorer court. we've talked about voiting rights. there was another decision on the provision of the civil rights act. i started to say that a lot of people are concerned ability.

-- ability. spline what happened on that case. >> there were two different cases on title 7. it says if you've been discriminated against based on gender or race or religion you can go to court and get a remedy for it. and it's talking about whether you have been discriminated against or ray a claim and then retaliation. and the court cut back on plaintiffs, on worker's ability to get paid when something bad has happened to them today in two different ways. first way they made it a lot hearder for plaintiffs to prove that they were fired because they raised a discrimination claim. now it's up to them to show. >> they raised the bar. tavis: they raised the bar and shifted the burden of proof.

>> right. and now there is a lot more you have to show and that's going to be hard to show in court. the other decision talks ability whether you can essentially bring a case against somebody who is not a direct supervisor but somebody who may tell you what to do without being able to hire or fire you. a co-worker with special authority. and the court made it harder to get money back in those cases too. they are not cutting these cases off entirely. it's shrinking and constraining but the court is careful to say there are little avenues so as to not make it seem like what they are doing is a really big deal even though it has a big patriot actle impact. tavis: in the "new york times" there was a good piece about this the other day there was a philosophical debate that is

happening these days about formal quality versus actual quality. it's one thing to say to the letter of the law this is what quality looks like. but it's another to take into consideration the historic issues how you get to actual quality. give me your sense of where this debate is headed and how it impacts our society. it's not just philosophical, it's practical about balancing this notion of formal quality with actual quality. >> that's the most interesting .art about today's decision they are representing different ideas, the one idea being that quality is realized when people are treated si met triically and the narly si metically and use of race today is the same

kind of use of race in the past. using race to include people is the same as using race and segregation to exclude people. in some ways it is a replay of one of the most emp mouse cases we had. the court didn't say that the 14th amendment permits inquality. what they said was segregation was not unequal because blacks and whites couldn't is it in each other's cars. all the symbol, the message, the conditions pushing people into second class citizenship, those are all asymmetries of race and 240es are asymmetries justice againstburg sizz the 14 ths amendment has something to say about. clarence thomas was saying all of the asymmetries, the fact that race doesn't mean the same

thing, the fact there are all sorts of conditions associated with race, all of that is in the social world. that is societal. it has nothing to do with discrimination. then you have justice ginsberg aying you can have disdiscrimination by treating people different. the last couple of decades has been a move away from people are differently situated and we are all treated equally if race isn't taken into account. tavis: this is an infact fromable issue given we live in a multieth nick america. i'm not asking you for the solution. how do we get to a solution? >> part of getting to a solution is taking to the streets.

not necessarily in marching or not necessarily in wanting to throw people out but in making sure citizens who care about this stuff are active so we see people pay attention to the shiny political races, the president and senate and maybe congress. but if people take to the streets and get nfered about local government and city council and who it is in their state legislature. that makes an enormous difference and that is because although the court keeps pushing back and saying government has to treat people formally equally. it's just on the surface. governments aiming to do the right thing by the people and that takes people paying attention have a lot of tools they can use. they can recruit in minority neighbors. they can put adds out for contracts. university of texas has a 10%

threshold. everybody graduates in the to be 10% gets into the u.t. system. not e ginsberg says lits pretend that is neutral. they have different racial and enrollments. if you take the top 10% of each you end up request a diverse group. if surface quality is all the court is willing to enforce then a government that actually is looking to do the right thing which takes the people watching and being active has a number of tools at its disposal. tavis: i hope this conversation has helped explain what some of the decigs today were about and what the pending decisions later this week will be ability. i suspect we'll have this conversation in the coming days as these cases unfold. for now justin and kimberly

thank you for coming on. >> that's our show tonight. thanks for watching and as always, keep the faith. >> for more information on today's show, visit tavis smiley at pbs.org. >> i'm tavis 13450eu8ly join me next time for a conversation with natalie cole. that's next time. we'll see you then. >> there is a saying that dr. king had, he said it's always the right time to do the right thing. i just try to live my life everyday by doing the right thing. we're only about half way to completely eliminate hunger and we have a lot of work to do. wal-mart committed $2 billion to fighting hunger in the u.s. as we work together we can stamp hunger out. >> and by contributions to your

pbs station from viewers like you. thank you. >>

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