she was not admitted to the university of texas. they take roughly 10% of their -- no, they take roughly 85 or 90% of the students through, you are automatically admitted to the university of texas at austin. she wasn't in the top 10% she was close but she was in a good school and had good grades and she thought she would have gotten in, but for racial preferences she knew people she thought were less qualified than she was that got in and the scores were lower than hers, etc.. so she sued them saying she should have been admitted and meanwhile she went to the state university and graduated but she lost in the lower courts in texas which obliged to apply strictly supreme court precedent the courts in texas, and for all u.s. court of appeals for the fifth circuit both held that the and university of texas plan which was modeled on the university of michigan will school that had been of help in 2003 that had followed the university of michigan plan closely enough so the court was obliged to uphold it. even won justice who said he hated

that includes the university of texas at austin. university of texas at austin admissions were capped a couple years ago at 80%. that's so that the entire texas entering class isn't composed of people who were in the top 10% of their graduating class. that could be done in a state the size of texas. after that 20%, they look at academic index and they look at other factors in what is called a personal achievement index. in that index, beginning in 2004, they looked at 12 factors, including socio -- economic factors. what language is spoken in the home. whether the student comes from a single parent home. whether the student has displayed leadership. their performance on two essays, and race. race is also -- can be considered if the student has identified their race in the application. >> talk a little about the argument in the brief and the process overall at the university of texas and if i think something is wrong with it. guest: we are on the other side of the case. i was briefed by my co-author and me, and in our book we argue th

appeals both held the university of texas plan which was modeled on university of michigan law school plan that had been upheld in 2003, followed the university of michigan plan closely enough that the court was obliged to uphold it. even one justice who said he hated racial preferences and would love to strike in down said that he had no choice but to uphold this one as a matter of supreme court precedents. seven early of the 16 justices on that circuit disagreed and thought they could strike down under the greater president but the case finds its way to the supreme court and is likely to become the most important case in history on racial preferences. not so much because there's anything that extraordinary about this case but the composition of the court has changed since the 2003 cases which gave a fairly green light to racial preference, large racial preferences as long as they are camouflaged beneath a complicated whole list -- that word is like we sprinkle holy water over our preferences by making them holistic. here is how i

university of texas, a case that could determine the future of affirmative action. abigail fisher, who is white, was denied admission to the university of texas at austin to richie suit, arguing that racial minorities with force credentials were accepted at had a fair -- ahead of her. she says and violates the guarantee of equal protection. this is about an hour and half. >> well, i get to say that this is case number 11-345, fisher against the university of texas at austin. and you get to say -- >> mr. chief justice, general suter trained me too well. mr. chief justice, and members of the court, and may it please the court, the central issue here is whether the university of texas at austin can carry its burden approving that its use of race as an admissions-plus factor in the consequent denial of equal treatment, which is the central mandate of the equal protection clause, to abigail fisher met the two tests of strict scrutiny which are applicable. first -- >> mr. rein, before we get to that, because the court is supposed to raise it on its own -- the question of s

by using very large racial preferences, the university of texas and most other universities in our view are setting up a lot of these students to fail. they're misleading them into thinking they're very well qualified academically to go to university of texas when, in fact, they're not. university of texas knows that most of them will rank pretty far down in the class, doesn't tell them that, and we think that's harming a lot of the supposed beneficiaries and not helping them. >> and so how do you respond to that? >> mr. taylor is entitled to his own views, but he's not entitled to his own facts. he wildly misdescribes what's happening at texas and what's happening at schools across the country. african-americans, latinos, many others and white students benefit from having a diverse student body and the university recognizes this. the idea that people are harmed by having access to flagship institutions doesn't really ring true with most people in their common experience. the dean of my law school said to us on our first day, all of you are terrific but we could have cleared the decks a

the big case is fisher v university of texas. >> a decade ago the court ruled that race could be used as a factor granting college admission. today a new supreme court heard a challenge to that which could change the law of the land on affirmative action. >> affirmative action will return to the supreme court docket. it involves a white student female who claims affirmative action was the reason she was shut out at the university of texas. >> for the first time to in ten years the justices are weighing the question: has affirmative action run its course? >> yes, because discrimination is over. just look at cnn. they employ on all talent from all ethnicities and backgrounds and that's just soledad o'brien. the student denied admission to the university of texas claims her race was held against her forcing her toll attend louisiana state university. folks, there's no greater injustice than having to attend your safety school. [ laughter ] i was devastated when i had to go to dartmouth instead of my first choice hogwarts. [cheers and applause] i mean they never -- [ laughter ] they never

the university of texas. >> trained me too well. chief justice and members of the court, may i please, of course, the central issue here is whether the university of texas at austin carry the burden of proving that it use of race is an admission plus factor in the consequent denial of equal treatment which is the central man at a time of equal protection clause to abigail fisher, two tests of strict scrutiny. which are applicable. before we get to -- to raise on the own. the question of standing, the injury -- if the injury is rejection by the university of texas, and the answer is no matter what, this person would not have been accepted then how is the injury caused by affirmative action program? >> justice ginsburg, the first injury before the court was the use of a system which denied equal treatment. it was a constitutional injury part of the damage claim was premisessed directly on the constitutional issue. >> past texas v will sage with that injury. >> the use of race is not -- injury sufficient necessarily. >> they were litiga

. >> wednesday, the supreme court heard fisher verses the university of texas at austin, a case that mission to the university in 2008. she sued, arguing that the use of race violates the guarantee of equal protection. a previous court ruling allows race to be one factor considered to achieve diversity. this is one hour, 20 minutes. >> well, i get to say that this is case number 11-345, fisher against the university of texas at austin. and you get to say -- oral argument of bert w. rein on mr. chief justice, and members of the court, and may it please the court, the central issue here is whether the university of texas at austin can carry its burden approving that its use of race as an admissions- plus factor in the consequent denial of equal treatment, which is the central mandate of the equal protection clause, to abigail fisher met the two tests of strict scrutiny which are applicable. first -- >> mr. rein, before we get to that, because the court is supposed to raise it on its own -- the question of standing. the injury -- if the injury is rejection by the university of texas, and

guest: i do not necessarily agree that the university of texas and others universities are choosing among on qualified applicants or that race is a factor. mr. taylor talked about the gap between s.a.t. scores for asian students and black students entering the university of texas. we do not know what is bringing down those scores. it is unfortunate there is such a large gap. maybe they were admitted because they were athletes or because they had some leadership potential. one of the interesting things to me is that universities should be permitted to admit qualified applicants. they admit applicants for a number of reasons. mr. taylor asks for more transparency from universities regarding race is used. -- regarding the way race is used. we do not really know exactly how race is used. what we do know is that it cannot be the deciding factor. there was a case in the 1970's that made clear. there cannot be quotas. press can only be one part of a holistic review -- race can only be one part of a holistic review. it is something that should be considered. these gaps are disturbing, but hopeful

night and yet on wednesday the supreme court will hear arguments in the case of fisher v the university of texas which could strike a death blow to affirmative action when it comes to college admissions the question at hand is whether or not the university of texas can still use race as one of many factors in college admissions to promote greater diversity on campus the player in the case abigail fisher says such criteria kept her from attending the school because she was white those violating her rights and with five conservative justices on the high court fisher will probably find a sympathetic audience but can we as a nation really scrap affirmative action policies especially given the fact that there are such a significant socio economic differences between whites and blacks in america today joining me now to answer this question is in a my chair here director of the justice to program at the brennan center for justice in my welcome. thanks for having me thanks for joining us what are the first of all what are the legal questions at stake here. so the legal questions here are whether the adm

the university of texas has an unusual system. it automatically admits anybody who graduates in the top 10% academically of any high school in texas. that gets a fair amount of diversity on campus because many of those schools tend to be racially more uniform, predominantly black or hispanic and tend to get versity. the problem for perhaps the majority of the justices how do you know when there's enough diversity. what the school says is, we don't want merely diversity in numbers. we want african-american students who are interested in fencing and speaking greek and studying architecture and hispanic students who are great fencers or ballet dancers. we want diversity in other words within the mere racial numbers. and i think for a majority of the court the question is how do you know when you're there, how do you know when you no longer need affirmative action. in a sense it was the question left unanswered in the court's decision nine years ago although that decision said maybe in 25 years we won't need this, and i think for many

in this case, i think for the university of texas, the majority of the students at the university of texas at intercampus if they are in the top 10% of their graduating class because of the way that the schools are set up. that leads to diversity. gerri: okay, all right, maybe. let's talk to kelly. you just said that justice should be blind and there may be more effective ways of getting some balance and student body than having the government come in and order that it do so. how is that? >> well, you know there are scenes that are considered socioeconomic. therefore, they are in different schools and university of texas has advocated that this is to help middle and upper class minority students. well, that is pitting minority against minority. how is that helping the disadvantaged people in this country. the people that don't have access. if there was assisting for people that don't have great education and to get them into better colleges, that is different. in this case, they are saying that you can equal grades or lesser grades. if you are a minority, we are going to lock someone

mash ahow did the university of texas attorneys defend their policies? >> well, the university said that race under its plan is one of roughly a dozen fasters that are considered when a student is going to be considered for admission into the university. that there is no quota. that the plan as constructed and administered and implemented, follows all of the guidelines that the supreme court set down under the gretter decision in 2003. the justices, gwen, have divided by race in the past. so it wasn't surprising that that divide play out again during the arguments today. hujustices more moderate to liberal, such as justices breyer and soto mayor and ginsberg being concerned that abigail fisher was asking the court to overrule the grutter decision. justice breyer, for example, pointed out that two lower courts here had looked at texas' plan and found it did meet all the requirements under grutter, so he pressed miss fisher's lawyer as to why do you say it doesn't satisfy grutter, and mr. rein, representing miss fisher, argued texas never considered race-ne

capacity to lead in a racially diverse society and so it pared its every applicant from the university of texas 43 percent of the officer corps comes from the rotc. >> what is your view on how we tell when the university has attain critical mass. >> i agree with my friend the critical mass is not a number. a very ill-advised. >> i'm hearing a lot about what is not. of what like to know what it is. our responsibility is whether this is tailored to achieving critical mass. >> may i answer. >> oh, yes. >> thank you. [laughter] >> i don't think that this is a situation in which the court simply afford a complete difference to the university's judgment. has achieved the level of diversity that it needs to accomplish its educational mission. the court has to make its own independent judgment. the wave that they would go of making an independent judgment is look at the kind of information the university considered and could be information about the composition of the class, information a backlash from diversity, retention and graduation rates, information about the specifics of the university's contex

those are good but they're below the median at the university of texas so regardless of race she might not have been accepted in the supreme court has previously ruled that a plaintive can't be in federal court unless there is a quote actual or imminent harm and not hypothetical harm so do you think that the . the conservative justices in deciding to hear this case and going to their own president specifically did this to eventually strike that down i think that's possible that's certainly our fear but it was interesting that that was one of the first questions raised by justice ginsburg and the issue wasn't given a lot of play in the briefs because i think both sides felt that the issue of standing had already been settled before we got there but it was raised as an issue and there is an argument to be made that there is constitutional harm and when that occurs you don't have to have the actual injury so as far as the standing here this goes back to two thousand and three. what to do specifically that case that you can you can take race into account with if it's part of a plan to have

of texas program including the university of texas in austin. the university of texas at austin admissions were capped a couple years ago at 80%, and so that's when they got higher texas classes, proposed to people in the top 10% of the graduating class. after that, the remaining 20% looked at academic index and a number of other factors like perm achievement index, and in that index, beginning in 2004, they looked at 12 factors including social economic status with the family, whether english is the language spoken in the home, whether the student comes from a single parent home, whether the student displayed leadership, performance on two essays -- >> host: okay, uh-huh. >> guest: and race. race is one of the issues, but can be considered if the student's identified their race in the applications. >> host: mr. taylor joining us here in washington, also filed brief in the case. talk about the argument of the brief and the argument overall for the university of texas and if you think something's wrong. >> guest: right. courteney's sum

increased the diversity on the campus enough so that no further measures are needed but what the university of texas found is that these measures were not enough to get a critical mass of minority students in specific programs so this plan was instituted to take into account not just race but a whole there are several different factors about a dozen different factors that are taken into account including leadership musical talent other types of things and barriers that they've had to overcome and race is just one of those factors as is gender and and other characteristics so. we've had the courts previously ruled that quotas are and constitutional right. no go ahead in the idea of using race as admissions criteria to promote diversity. then i mean is that the end of any sort of firm abduction at least on the college campus as we know it but i hope not i think that you know at least affirmative action as it's practiced in the federal contracting community is done a little bit differently and it has a lot to do with expanding your. recruitment and making sure that you're getting a diverse pool of appl

returns to the supreme court. >> the last times the united states supreme court and of the university of texas was 60 years ago. the issue then was about excluding african-americans and we were on the wrong side of history. >> that is bill powers, president of the university of texas at austin. this time, the case is about a white woman was denied admission. could this be the end of affirmative action? >> yes. it is a bit different because, and some point, when texas the right of affirmative action, their minority numbers drop off the cliff. george bush signed a state law that gave the top 10% of any class the right to go to ut. and then gave it a bit of diversity because most of the schools in texas are defacto segregated. but the numbers were still dropping or stagnant. so they have a huge minority population and a day added to what is in affect affirmative- action. >> i am not a court counter. but it seems like this might be a split. it is a split, the decision stands. but we are in another area now. when the founders wrote the constitution, i was 3/5 of a person. the issue of getting into

that the university of michigan law school, where they did use race in admission, had a lower level of -- they considered 14% to be a critical mass, much less than what the university of texas achieved through race- neutral means. i think this goes a long way to explaining why most observers think the supreme court is likely to strike down the use of race at the university of texas. the second question we take up, what should replace race-based affirmative action if it in fact is struck down by the u.s. supreme court? in a report, we look at nine states where, because of voter initiative or executive order or legislation, univ. -- universities -- they did not give up on diversity and tried to find other ways of achieving racial and ethnic diversity. these plans were hardly perfect, but in many ways there are better than the old style of race-based affirmative action. you can see that in our analysis, six state street partnership with -- partnerships with disadvantaged by schools to increase the pipeline of low- income and minority students. seven of the states provide class-based admission preferences. eight states expanded their financial aid budgets in order to provide su

. >> reporter: abigail fisher was denied admission to the university of texas, she says, because of admission policies that favored less-qualified minorities. her simple argument is to stop using skin color in college admission. >> i hope the court rules that a student's race and ethnicity should not be considered when applying to the university of texas. >> reporter: the u.t. entering class is among the most diverse anywhere-- roughly 50% white and 50% minority. by law, the school has to admit the top 10% of every high school class, regardless of race. but u.t. also uses what's called "wholistic review" where race is separately considered with other factors, including leadership and family income. the university says that's legal under a 2003 ruling from justice sandra day o'connor. it allowed colleges to use race to find a critical mass of underrepresented minority students. but the court's conservative justices repeatedly asked when does the use of race end? libyan justice sonia sotomayor, defending affirmative action, asked: the university's lawyer, greg garre, said u.t. doesn't have a nu

abigail fisher sued the university of texas claiming she was denied a spot partly because she is white. >> i hope the court rules that a student's race and ethnicity should not be considered when applying to the university of texas. >> reporter: fisher's supporters say there are ways colleges can promote diversity without considering race. texas has a law called the 10% plan. it guarantees admission to all students in the top 10% of their class regardless of race. after those students are admitted, the university of texas uses other factors including test scores, student activities and race to determine who gets the remaining spots. the supreme court tackled the controversial issue just nine years ago but since then, the makeup of the court has become more conservative. >> the end of affirmative action is a political goal that people have had for quite some time. that's what's at stake in this case. >> reporter: the university contends even if fisher was a minority student she would not have made the cut the year she applied. supporters of the university's policies say changing it woul

universities -- of affirmative action at universities. the plaintiff says she was denied admission to the university of texas because she is white. danielle nottingham has more now from capitol hill. >> reporter: the supreme court is once again deciding whether race should be a factor in college admissions. abigail fisher sued the university of texas claimed she was denied a spot partly because she is white. fisher's supporters say there are ways colleges can promote diversity without considering race. >> we think that colleges and universities throughout the country can institute race neutral admission criteria, especially using economic disadvantage to give students a leg up. >> reporter: texas has a law called the 10% plan. it guarantees admission to all students in the top 10% of their class regardless of race. after those students are admitted, the university of texas uses other factors, including test scores, student activities, and race to determine who gets the remaining spots. the supreme court tack himmed the controversial issue just nine years ago but since then, the makeup of the court has become more conservative. >>

court rules that a student's race and ethnicity should not be considered when applying to the university of texas. >> reporter: the university of texas uses factors including test scores, student activity and race to help pick its freshman class. lawyers for the university told the court the policy is necessary to improve diversity. >> most americans would like a day when we don't need to take race and ethnicity into account in admissions. we are not to that day. >> reporter: abigail fisher went on to graduate at another university, but the supreme court's decision could impact college admissions nationwide. when the court last considered the issue in 2003, it supported some racial consideration in public university admissions. as the justices listened to arguments, supporters and opponents of affirmative action gathered outside the court. both sides are closely watching e fisher case. >> the historical content, it's very important we have a level playing feel for everyone. >> i don't think diversity is a compelling government interest. it's certainly not a justification for further discriminatio

let's talk about the university of texas, there was a window -- let's talk about university of texas. there was a window when there was a decision that struck down the issue of race in the circuit of appeals. in that window, no freshman class at the university of texas had more than 4.5% african-americans. at that level, the graduates of high school in texas are between 12% and 13%, so to say that that number, and i take it that although the numbers vary from school to school, to say that number is a ceiling of opportunity, a ceiling for inclusion, is a hard limit. it limits our aspiration -- that is a problem we need to drill down further into the data. i will make one other point and then i look forward to the questions and the dialogue. martin luther king, as i read his writings and life's work, did not say that -- he did not embrace color blindness as and illusion that should be grasped. he articulated as an aspiration we should seek to achieve in the concept of -- context of laying down the burdens of segregation, exclusion, mob violence, and it's -- constitution and society wher

court rules that a student's race and ethnicity should not be considered when applying to the university of texas. >> most student are admitted to the university of texas based on their high school rank. a ruling expected next year. cbs moneywatch. spain's credit rating gets slashed and the end of the line for coca-cola's returnable glass bottles. ashley morrison here in new york with more on that. >> reporter: good morning. standard & poor the credit rating agency cut its rating on spain's debt to the lowest investment grade status. spain's debt crisis has triggered social unrest and driven unemployment to almost 25%. s&p warns banks could be downgraded further if economic conditions continue to erode. the news about spain sent most asian stocks downward. tokyo's nikkei dipped half of a experience for a third straight day of losses while the hang seng added a quarter percent. wall street stocks were lower. the dow lost 128 points on wednesday, the sharpest decline since june. nasdaq was down 13 points. the housing market continues its low gear recovery. realtytrac says the number of foreclosures

justices said today, particularly justice kennedy, at the heart of this is a white student at the university of texaslicy in the top 10% of the class you're accepted to their university and she and perhaps others believe their entry in to the university's affected by this procedure. >> that's right. but to be clear, tamron, the top 10% filled the three quarters of the case. she is not in the top 10% of the class and what's at issue is remainder of the class allows the university to use race as a plus factor. not as a quo that but a plus factor. she believes she would have gotten in but for that analysis and therefore that's why she's bringing the suit. >> justice kennedy's comments stood out to you. why? >> well, he's never upheld affirmative action program so on the one hand, you know, that makes him very questionable as a vote for the university of texas affirmative action program. on the other hand, he's upheld -- he's sometimes saying a conceivable program and hasn't found it yet so all eyes are directed toward him as a swing vote in this case. >> let's play what the university of texas president

court rules that a student's race and ethnicity should not be considered when applying for the university of texas. >> reporter: the university of texas uses factors including test scores, activities and race. lawyers for the university told the court the policy is necessary to improve diversity. >> most americans would like a day when we don't need to take race and ethnicity into account in add misses. we are not to that day. >> reporter: abigail fisher went on to graduate at another university but the supreme court's decision could impact college admissions nationwide. when the court last considered the issue in 2003, it supported some racial consideration in public university admissions. as the justices listened to arguments, supporters and opponents of affirmative action gathered outside the court. both sides are closely watching the fisher case. >> it's very important that we do have a level playing field for everyone. i don't think diversity is a compelling government interest. it's really not a justification for discrimination. >> reporter: a ruling in this case is expected next year. danie

not at all clear she isn't titled to under any circumstances and this is the university of texas and versus this thing called the eleventh amendment's which prevents people getting money back unless the state has clearly waived its right to engage in the activity, not at all clear that they would be that passed here as well. her lawyers claim there are other damages, emotional damages. not clear she is entitled to

decided the university of texas made its own choice. this is after the paynter case and this was to make a new dormitory that had just been built after one of the former professors at the university of texas whose name happened to be colonel shimkus. he was at his borneman, it was the name that he adopted because he fought in the confederacy. he not only fought in the confederacy, he then went to florida with his brother and organized the ku klux klan and was involved in the murder of 25 blacks so he was the only confederate, he was a criminal. he was nonetheless the person that they named one of their dormitories after a 1965. that dormitory remains until 2010. we are not talking about past, we are talking about what i would consider part of the contemporary reality. and how did they get to be named? because it turned out a professor of the university of texas went and looked up the history and found out this wasn't necessarily somebody you want to use as a role model for your students. they have also already had a brass cannon the libr

the lawyer from the university of texas says the school the lawyer from the university of texas says the school looks at all of the student's accomplishments. we want minorities from different backgrounds, he said. but that prompted justice kennedy, likely the critical vote, so what you're saying is that race counts above all. opponents of the affirmative action hope they strike it down, judging from the arguments today, they will scale it back possibly. >> pete williams for us tonight, in washington, thank you. >>> and for years, lance armstrong insisted he never cheated or doped as he won title after title in his sport. recently he stopped fighting and said he would no longer fight the charges by the u.s. anti-doping agency. and now, tonight, they have unveiled their case against him. our senior investigator correspondent lisa myers has a look at the body of evidence. >> reporter: banned for life and stripped of his tour de france victories, there he was this past two weekends the man once known for his stunning achievements, competing in the race, with his daughters alongside. tod

university admits. >> reporter: the president of the university of texas said we would all like to reach a day and when race and factor are not part of the college admission. we're not at that point. but critics call the current is system at his university discrimination. the university of texas at austin was her dream school, but she did not get in. abigail fisher came to the u.s. supreme court and said she didn't get into the university in 2008 because she's white. >> i hope the court rules that a student's race and ethnicity shouldn't be considered when applying to the university of texas. >> she had the courage and perseverance to stand up for equality, what was rate and to guarantee the fundamental of all of us that we're entitled to the equal protection of the law. >> reporter: the university automatically admits most of the students based upon their rank and high school class and one quarter of texas freshmen are admitted based upon a formula made up of many factors, one which of is race. bill powers said if the supreme court prevents that -- . >> we would not be given the kind of education to a

this was brought by abigail fisher, a white woman denied admission at university of texas even though some of her scores were higher than minority candidates. and she sued under equal protection grounds and the justices have to decide whether schools can use racial preferences even when race neutral means the on the campus are already effective. >> what does it tell you that the supreme court took the case as recently in 2003, in a michigan case, the justices said that race could be one of the criteria used in admissions. does it seem to you that they're revisiting that judgment? >> they're certainly revisiting that judgment and part of it is because how that judgment played out. what happened in the case you're referring to, gruter versus university of michigan, was that they basically said that, sandra day o'connor said in her opinion schools should try first to use race neutral means. now, university of texas was doing that, they have a law called the top 10% law which basically requires the school to admit the top 10% of high school students across the state. >> from any high scho

the court heard arguments in the fishers versus university of texas. alleges she was denied acceptance to her home university because of her her. defend. >> we believe the educational benefits of diversity are so important they're worth fighting for all the way to the supreme court. >> most americans would like a day when we don't need to take race and ethnicity into account in admissions. we are not to that day. >> eliot: joining me now is the president of the national urban league and former mayor of new orleans, thank you mayor for joining me. >> i appreciate it. >> eliot: let me start with what is the hardest question, why do we still need affirmative action in higher education? >> well, there are two important reasons. one is what the consideration does it get to, a diverse student body. a diverse student body at institutions of higher education is where leaders and citizens of tomorrow who will operate in a more diverse world are being trained. the benefits of diversity in the student body in the student body as a role is apparent. secondly educat