tavis: good evening. from los angeles, i am tavis smiley. tonight a conversation with scholar and voting rights expert lani guinier. the u.s. supreme court announced it would review a college emissions case that could set in motion a new era of hostility toward affirmative action. lani guinier is the first african american woman to serve as a tenure in the harvard law school. we're glad you have joined us. the conversation with lani guinier coming up right now. >> every community has a martin luther king boulevard. it's the cornerstone we all know. it's not just a street or boulevard, but a place where walmart stands together with your community to make every day

better. >> and by contributions to your pbs station from viewers like you. thank you. tavis: lani guinier is a professor at -- of law at harvard. she is also a noted author whose books include "lift every voice ." she joins us tonight from cambridge. good to have you on the program. the supreme court has agreed to hear a case that is going to open up a this debate about affirmative action in this country.

that debate, will kick up in advance of the election campaign of barack obama, the reelection of the first african-american president. i want to start with some basics. tell me about this case, out of texas. what it is about and why you think the supreme court agreed to hear the case. >> the case is a lawsuit by a two white women who were not admitted to the university of texas. they sued claiming the university was considering a race as one of the factors for admission. and that the consideration of race was not tailored to survive constitutional scrutiny. the women went to others universities and are going to graduate this semester. in some ways the case is moot

because they have already achieved their educational success. the only thing they could possibly get might be damages for the fact they had to bring this lawsuit. in terms of forward-looking injunctions, this seems like an odd case for the supreme court. tavis: the second question, why do you think they agreed to hear the case? >> that is a question that, you are as competent to come up with an answer as i am. part of what you need to know is that they need four votes to take a case. there are clearly four votes against affirmative action. those four members of the courts

may have voted to hear the case. it is not clear if they have the fifth to decide in the case that would challenge a decision the supreme court made when justice o'connor was on the court. tavis: let me get more into the case. we will expand from there. the state of texas has a 10% rule. i will let you explain what that is. i recall reading a piece you wrote applauding this 10% rule in the state of texas. explain what that is and why these women were not covered under that rule if they were talented to be admitted in the first place. >> the 10% rule was a response to another case challenging the

use of diversity in a loss ". it shifted the understanding of merit away from breaking people based on their s.a.t. and instead used to their high school gpa. anyone in the top 10% of their graduating class in high school, whether an independent school or public, is eligible to one of the two flagship schools. as a result, the university was able to maintain more diversity than without the plan. it was still not perversity that insured that blacks and latinos would be comfortable on campus. there were many class's in which there were no black students or

only one black student. the university felt it needed to have a more robust to view of diversity in order to compensate for the lack of critical mass. what happened is that, in addition to the 10% plan, after the supreme court ruled that a holistic review of applicants was constitutionally permissible as long as people were considered in a holistic way and not based on a particular quota. that gave the university permission to add to the 10% plan. its own review for a group of people who did not make it into the school based on their high school grades but might have something else to offer. tavis: what does this case have to do with the 10% rule or how she thought she was not treated?

-- maltreated? >> the 10% rule does not consider the race of any candidate. it is based on whether you went to high school and graduated in the top 10%. one of the advantages of the 10% rule is that it was adopted by the legislature as a result of a coalition of black legislate source who were in favor of it. latino legislators in favor of it. then you had a white republican legislators who were representing rural districts who realized without the plan, and nobody from their community would get to go to the university of texas, the

flagship schools. they joined together to support the plan because it was benefiting their constituents, not just blacks and latinos but low-income whites. tavis: help me understand the merits of the case. what is she claiming? >> she is claiming that, in addition to the rule, the university has a provision that allows university administrators to consider a holistic review of some candidates who did not make it in based on the 10% rule but to have other things to offer to this court. she says she should have been admitted under this holistic review. tavis: the bottom line is she did not make the cut for the top 10%. she did not make the top 10%.

when a holistic review othe persons not and automatically it made it, because race is one of those factors, she got left out. >> right. race is not based on whether you or black or latino. you could be a white student who is going to an all-black school. they could consider the fact you are white and are having an unusual experience for a white person and therefore your race is something that makes you an unusual candidate. tavis: is that a mockery or is that whatever happened? i can hear people saying that would never happen. >> i think it could happen. i believe there are many circumstances in which whites are in a minority in a black school or latino school.

they have an unusual opportunity to experience diversity from a different perspective. the schools are segregated in texas based on housing. that does not mean everybody who lives in a particular neighborhood of is of the same race. tavis: why does this issue keep coming up out of texas? >> it is a very big state. it has a large and growing latino population. it also has a significant black population. there are many factors to university has to take into account in order to have a diverse student body. there is also a small percentage of latinos. texas is a large state and has a diverse population. tavis: you reference to the

decision some years ago made by the supreme court on affirmative-action, justice o'connor, i will let you explain it. you teach this everyday. she made the case that it was not time to end it. that would come in 2025. she was able, with her vote, to put this thing off. take me back to a few years ago. tell me what you think is going to happen. wrote ane o'connor opinion for the supreme court in which the court affirmed the idea that having a critical mass of students in a classroom or on a campus is constitutional and that a university that is seeking to enhance its diversity is pursuing a constitutionally

acceptable approach. she said that, she did not expect diversity or the consideration of race, meaning that you are not being admitted because of your race but your race and your experience. your background. all of those things arbeing considered in terms of what kind of diversity or experience he will bring to the campus that is going to be a source of your own learning but he will be there to help other students who have lived much more isolated lives to understand the richness of our society. shdid say that the end standing there court was taking of diversity in 2003 was not something she expected to last forever. she expected that the particular

remedy of a holistic review which last 25 years. that is from 2003. tavis: in light of what you just said, why, given that decision, where she writes the decision, and granted she is no longer there, 2012, we ain't now where near 25 years. why are they taking up this case? >> as i said, that is a good question. the only answer i can give you since the deliberations of the supreme court are secret, i am not privy to them. the only people who know are the justices who met in secret and voted. the thing you need to know is that in order to take a case to the supreme court you only need

four votes. tavis: why is that the taste? there are nine members on the bench. you do not need a majority of members to hear a case. i want to understand why is that the case? >> because if four members are interested, it is worth considering. it does not mean they are going to overrule. it is just that a strong minority of people on the court, expressing an interest in hearing the case is enough to get it on the docket. tavis: is that a wise strategy? does that make sense? >> i do not have the strong feelings about a four person minority selecting a case. sometimes there are people who

have strong views. i think it is appropriate for them to have a chance to air those views and require the litigants to provide the kind of factual basis to enable them to take those views and convince their peers. the fact they have taken the case does not mean they are going to rule for the plaintiff. every court that has seen this case from the district court to the fifth circuit to the fifth circuit on bank, all of them have ruled for the university of texas. tavis: i do not disagree with that. for many years, and thurgood marshall was in the minority. were it not for those four votes, for the minority it would not have been heard. i hear the point you're making. let me ask you, but me put it

this way -- there are a lot of folks who are saying after the election of barack obama we were living in a post-racial america. you did not buy that nonsense. i have said repeatedly is that it means america is laced -- less racist. america is less racist but it does not post-ratio. a lot of folks who ran to make this argument could not get it out fast enough. the u.s. supreme court has decided to hear this case again nowhere near the 25 year benchmark. we are doing it again in an election year where this african-american stands for reelection. what do you think the politics, which try to act as if the supreme court is about politics. what are the politics around

this issue? >> it is a good question. i am sorry i do not have a better answer. i think there are four justices who feel very strongly that diversity is not a constitutionally permissible goal. this is an opportunity to express their view. the fact that it is an election year i do not think it has explanatory power. even though it will be argued before the election, the court is not going to decide it before the election. it will give salience to this set of issues. tavis: to your point, i suspect, now that the court has agreed to hear the case, i can bet you that in these debates between obama and romney, obama and team

bridge, whoever else they decide they want to put up, the nominees will be asked a question about this case or affirmative action. what position does this put the african american president in in? >> i think most americans are comfortae with the ibm of divert -- with the idea of diversity. this is not just a way for the university to select candidates based on their race but also the fact they have this additional process that enables people to get admitted in addition to the 10% plan. maybe how they admit their football players or their basketball players, the people who play polo. those who are interested in sports could understand why the

university does not want to rely only on a 10% plan that admits the top 10% of their graduating class. they are looking for people who are going to add something to the atmosphere on campus. most americans would see that as being a reasonable approach. this is not a quota. we're talking about 1200 students in a university that has thousands of students. there is no evidence that this holistic review was responsible for the woman not getting it made it. she may not have been an impressive candidate as far as the admissions committee was concerned. tavis: i am not asking this out of naivete, and we can talk about the legacy, admission, he another king, so many

considerations. when it comes to challenging public policy, why is it that race in admissions is the one issue, the narrow issue, we keep seeing come up as opposed to legacy or other consideration? why race? >> another great question. race is the language of class. we do not like to talk about class. instead we talk about race. if he wanted to talk about class you would have to can see that a disproportionate -- concded that a disproportionate number of students are the children of privilege. in many ways, our conventional system of admission is a preference for those who are already privileged. people do not want to talk about that.

they do not want to say that the a.c.t. are normed based on white, upper-middle-class performance. they do not use that if they white people do not do well on that test. there are all kinds of things going on in the admissions process that nobody wants to acknowledge. instead we talk about race because that is something everyone can see. it is something people do not feel comfortable with in terms of how we are going to move to a society in which we welcome diversity but we are concerned about the legacy of slavery and jim crow and we want to make interventions that are going to provide those people who have been disadvantaged historic plea and over the many centuries to

have an equal opportunity to advance in this system as other people coming to the united states. tavis: what is your sense of how the college and university system will rally or run from this case? i did not get to moscow. there is -- to law school. there is a brief you can do. >> i think they are going to rally. it is important and it is important for interesting reasons. problems are so complex is that it is not easy for one individual to solve the problem. what you need is a group of problem solvers. this is goes back to the work of scott page. he is a professor at university of michigan. he says that if you have a problem and you want to saba,

you need to have a group of diverts problem solvers. if not, you have people who may be coming at the problem from a smart position but it is all the same. you want people who can bring different perspectives to the problem in order to ensure that you have the benefit of as much information as possible. that is true in terms of racial diversity. if you want to have high collective intelligence, you need to have a lot of women. it turns out that 80% women has a higher collective intelligence than groups that are predominately male. this is the 21st century. we need to know how to collaborate with people who think differently than we do. tavis: somehow i think the last

comment you made will be thrown in my face by the women on my staff perio. thank you for giving them more ammunition. [laughter] >> when men -- women have been trained to think about social sensitivity. the notice when people are not speaking. it is not something that men cannot learn. they have gone away without learning it. tavis: i wonder whether you not, think our university and college system is too impressed braininessness -- to the detriment of other factors? >> to the detriment of our democracy. the purpose of higher education

is not to decide who is smart but also to train future leaders and train all of the graduates so they can deliberate affectively and make good decisions that will benefit our democracy and all of the people. not just individual who is graduating with a diploma. tavis: you can read more about the case by going online. the supreme court has agreed to hear it. for now, good to have your insights. that is our show for tonight. until next time, keep the faith. >> for more information on today's show, visit tavis smiley at pbs.org. tavis: hi, i'm tavis smiley. join me next time for a conversation with jay roach with his latest

project. that is next time. we will see you then. >> every community has a martin luther king boulevard. it's the cornerstone we all know. it's not just a street or boulevard, but a place where walmart stands together with your community to make every day better. >> and by contributions to your pbs station from viewers like you. thank you. >> be more. >> be more.