Harvard law professor Lani Guinier

The Harvard law professor and noted author discusses the ongoing affirmative action debate as the U.S. Supreme Court agrees to reconsider the constitutionality of race-conscious college admissions.

Lani Guinier has been a trial lawyer, a government lawyer and an academic. The first woman of color to become a tenured professor at Harvard Law School, she was previously a law professor at the University of Pennsylvania and regularly lectures at other law schools and universities. Guinier came to public attention in '93, when President Clinton withdrew her nomination as assistant attorney general for civil rights. She’s a leading advocate for political reform and an author of numerous books, articles and op-ed pieces on issues that include educational equity and race and gender.


Tavis: Lani Guinier is a professor of law at Harvard, the first African American woman, in fact, to receive tenure at the Harvard law school. She is also a noted author whose books include “Lift Every Voice” and “Meritocracy, Inc.” She joins us tonight from Cambridge. Professor Guinier, good to have you back on this program.

Professor Lani Guinier: Thank you, Tavis.

Tavis: So the Supreme Court, as I said a moment ago, has agreed to hear a case that, like it or loathe it, agree or disagree, is going to open up again this debate about affirmative action in this country.

That debate, in fact, will kick up in advance of the reelection campaign of Barack Obama, or certainly the reelection of the first African American president. So I want to just start with some basics, and then we can build from there.

Tell me about this case out of Texas, what the case is about and why you think the Supreme Court agreed to hear the case, and then we’ll go from there.

Guinier: Well, the case is a lawsuit by two white women who were not admitted to the University of Texas, and they sued, claiming that the University of Texas was considering race as one of the factors for admission, and that the consideration of race was not narrowly tailored to survive constitutional, strict scrutiny.

The two women then went to other universities and I believe are going to graduate this semester from these other universities, so in some ways the case is moot because they have already achieved their educational success, and the only thing that they could possibly get might be damages for the fact that they had to bring this lawsuit.

But in terms of forward-looking injunctions, this case seems like an odd one for the Supreme Court to take.

Tavis: So if it’s an odd one for them to take, then, that second question I posed – why, then, do you think the Supreme Court agreed to hear this case?

Guinier: Well, that’s really a question that you’re as competent to come up with an answer as I am. Part of what you need to know is that the Supreme Court only needs four votes to take a case, so there are clearly four votes against affirmative action, and not very sympathetic to issues of diversity. So those four members of the court may have voted to hear the case, but it’s not clear whether they have the fifth vote to actually decide the case in a way that would challenge the decision that the Supreme Court made when Justice O’Connor was on the court in a case, Grutter vs. Bollinger.

Tavis: Let me dig a bit more into the case, and then again we’ll expand from there. The state of Texas has what is known as a 10 percent rule. I’ll let you explain what that is, because when that rule came out I recall very vividly reading a piece that you wrote applauding this 10 percent rule in the state of Texas.

So let’s explain why that is and why these two women were not covered under that 10 percent rule if they were talented enough to be admitted in the first place.

Guinier: Okay, well, the 10 percent rule was a response to another case, a case brought by Cheryl Hopwood, who was challenging the use of diversity at the law school.

The 10 percent rule basically shifted the understanding of merit away from rating people based on their SAT or LSAT or ACT scores and instead using their high school GPA. So anyone in the top 10 percent of their graduating class in high school, whether it’s an independent school or a public school in Texas, is automatically eligible for admission to one of the two flagship schools.

As a result of the 10 percent plan, the university was able to maintain more diversity than without the 10 percent plan, but it was still not diversity that ensured that Blacks and Latinos in particular would be comfortable on campus, because there were many, many classes in which there were no Black students or only one Black student, and the university felt that it needed to have a more robust view of diversity in order to compensate for the lack of critical mass.

So what happened is that in addition to the 10 percent plan, after the Supreme Court ruled in Grutter that a holistic review of applicants was constitutionally permissible as long as people were considered in a holistic way and not simply based on a particular quota.

So that gave the University of Texas permission to add to the 10 percent plan its own holistic review for a group of people who didn’t make it into the school based on their high school grades but might have something else to offer.

Tavis: So what does this case, then, Fisher vs. University of Texas, the case the Supreme Court has now agreed to hear, what does this case have to do with the 10 percent rule or how Ms. Fisher thought she was maltreated by that ruling?

Guinier: Well, she’s not challenging the part of the admissions program that is based on the 10 percent rule, because the 10 percent rule does not consider directly the race of any candidate. It’s based on whether you went to high school and graduated in the top 10 percent of your graduating class in Texas.

One of the great advantages of the 10 percent rule is that it was adopted by the state legislature as the result of an unusual coalition of legislators. You had Black legislators who were in favor of it, you had Latino legislators who were in favor of it, and you had white, Republican, conservative legislators who were representing primarily rural districts, who realized that without the 10 percent plan nobody from their community would get to go to the University of Texas or Texas A&M, the flagship schools.

They joined together to support the 10 percent plan because it was benefitting their constituents, not just Blacks and Latinos, but low-income rural whites.

Tavis: So I know you don’t agree with it, but help me understand better then the merits of the case, Fisher vs. University of Texas. What, then, is she claiming, specifically?

Guinier: She’s claiming that in addition to the 10 percent 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 percent rule but who have other things to offer to the school.

She’s saying she should have been one of the people who was admitted under this holistic review.

Tavis: So the bottom line is that she did not make the cut for the top 10 percent, she must have come under 10 percent – 11, 12, 13.

Guinier: That’s correct.

Tavis: She didn’t make the top 10 percent cut, and when a holistic review of the persons not automatically admitted in the top percent is considered, her argument is that because race is one of those factors, she got left out.

Guinier: Right, but race is not based on whether you’re Black or Latino. You could be, for example, a white student who’s going to an all-Black school, and they could consider the fact that you are white and are having an unusual experience for a white person and therefore your race, as a white person going to a Black school, is something that makes you an unusual candidate.

Tavis: Is that a mockery, or is that something that whatever happened? I can hear people saying right now, come on, Professor Guinier, you know that would never happen.

Guinier: Well, no, I think it could happen. I believe that there are many circumstances in which whites are in a minority in a predominately Black school or a predominantly Latino school and have an unusual opportunity to experience diversity from a different perspective.

Tavis: Mm.

Guinier: The schools are segregated in Texas based on housing, but that doesn’t mean that everybody who lives in a particular neighborhood is of the exact same race.

Tavis: Why does this issue keep coming up out of the state of Texas?

Guinier: Well, first of all, it’s a very big state. Second of all, it’s a big state with a large and growing Latino population, and it also has a significant Black population.

So there are many factors that the university has to take into account in order to have a diverse student body. There’s also a small but growing percentage of Latinos. So Texas is a large state and it has a very diverse population.

Tavis: You referenced earlier in this conversation the decision most recently, some years ago, that is, made by the U.S. Supreme Court on affirmative action. Justice O’Connor, sitting on the bench at the time, I’ll let you explain it; you recall it, I’m sure, almost verbatim, since you teach this every day.

She made the case then that it wasn’t time to end it yet, and that would come in 2025, whatever year she said. I’ll let you, again, explain that in a second. But she was able with her vote, Kennedy and others, to put this thing off.

So take me back to a few years ago and tell me what the court said then, and then tell me what you think is going to happen now in this particular hearing.

Guinier: Okay, so Justice O’Connor in 2003 wrote an 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.

What she did say is that she didn’t expect diversity or the consideration of race, again, holistically, meaning that you’re not being admitted simply because of your race, but your race and your experience, your class, your background, where you grew up.

All of those things are being considered in terms of what kind of diversity or what kind of experience you’re going to bring to the campus that’s going to be a source not only of your own learning but you will be there in some ways as a quasi-teacher, to help other students who have lived much more isolated lives to understand the richness of our society.

She did say, however, that the understanding that the court was taking of diversity in 2003 was not something that she expected to last forever, and that she expected that the particular remedy of a holistic review would last 25 years. But that’s 25 years from 2003.

Tavis: All right, so back to the question. I ask again, in light of what you just said now, let me go at it another way. Why, then, given that decision by the Supreme Court, where she writes the decision for the Supreme Court – granted, she’s no longer there – but 2003 to 2012, pardon my English, we ain’t nowhere near 25 years as yet. So why is the Supreme Court taking up this tricky case out of Texas?

Guinier: Well, Tavis, as I said, that’s a very good question, and the only answer I can give you, since the deliberations of the Supreme Court and why they take a particular case are secret.

So I’m not privy to them, and the only people who ostensibly know are the justices, who met in secret and voted. But the thing you need to know is in order to take a case to the Supreme Court, in order for the court to accept it, you only need four votes. So it doesn’t –

Tavis: Let me jump in right quick. Why is that the case? There are nine members who sit on the bench, and you don’t even need a majority of members to decide to hear a case.

I’m not saying I disagree with that; I just want to understand why is that the case. Why is that that way?

Guinier: Because they feel if four members are interested in the case, then it’s worth considering. It doesn’t mean that they’re going to overrule the case or that they’re going to rule in any particular way. It’s just that a strong minority of people on the court who express an interest in hearing the case is enough to get the case on the docket.

Tavis: I’m just curious as to your take on it, since you teach this stuff every day. Is that a wise strategy? Does that make sense to you? I’m just curious.

Guinier: I don’t have strong feelings about a four-person minority selecting a case because sometimes there are people who have very strong views, and I think it’s appropriate for them to have a chance to air those views and to also require the litigants to provide the kind of factual basis to enable them to take those strong views and convince their peers.

The fact that they’ve taken the case does not mean they’re going to rule for the plaintiff, Ms. Fisher. In fact, every court that has seen this case, from the district court in Texas to the Fifth Circuit panel to the Fifth Circuit on bank, all of them have ruled essentially for the University of Texas’ position.

Tavis: I just want to get your take on it. I don’t disagree with that, because for so many years, as you well know, Thurgood Marshall was in the minority, and were it not for those four votes there are a lot of cases that I thought should have been heard and you thought should have been heard that wouldn’t have been heard but for the minority in the other direction. So I hear the point you’re making and I don’t disagree.

Let me ask you, though, how – let me put it this way. There are a whole lot of folk, as you well know, who were saying after the election of Barack Obama as president that we were living in a post-racial America. You didn’t buy that nonsense, I didn’t buy that nonsense.

I said repeatedly on this program and elsewhere what Obama’s election means is that America is less racist, given that Negroes alone did not elect him. A whole lot of white people voted for Barack Obama. So America is less racist, but it’s not post-racial.

But there were a lot of folk who ran to make this argument, couldn’t get it out fast enough, that his election meant that we were living in a post-racial America.

Here now the U.S. Supreme Court has decided to hear this case again, but we’re nowhere near the 25-year benchmark that the court set in the last decision, and we’re doing it again in an election year, where this African American now stands for reelection.

I don’t want to color it too much, but what do you think the politic – I know we try to act as if the Supreme Court is above politics, but for those who are going to be on one side or the other of this hearing, of this case, what are the politics around this issue in 2012?

Guinier: Well, that’s a really good question, Tavis, and I’m sorry that I don’t have a better answer. I think, frankly, that there are four justices of the court who feel very strongly that diversity is not a constitutionally permissible goal, and this is an opportunity for them to express their strong views.

The fact that it’s an election year, I don’t think it has explanatory power because even though it will be argued, perhaps, before the election, the court is not going to decide it before the election, so it’s not going to influence the election, although you’re right that it will give higher salience to this set of issues.

Tavis: So I suspect, to your point now, Professor Guinier, and you ain’t got to be a rocket scientist to figure this out, now that the court has agreed to hear this case, I can bet you that in these presidential debates that are to come between Mr. Obama and Mr. Romney, Mr. Obama and Mr. Santorum, Mr. Obama and Mr. Gingrich, Mr. Obama and whoever else they may decide they want to put up, the two nominees are going to get asked, I suspect, a question about this case or about affirmative action, given the Supreme Court is going to hear it, what position, politically does this put the African American president in?

Guinier: Well, I think that most Americans, frankly, are quite comfortable with the idea of diversity, especially since this is not just the way for the university to select particular candidates based on their race, but it’s also the fact that they have this additional process that enables to get people admitted in addition to the 10 percent plan, maybe how they admit their football players or their basketball players or the people who play polo.

So those who are interested in sports could understand why the university doesn’t want to rely only on a 10 percent plan that admits people who were in the top 10 percent of their high school graduating class.

They’re looking for people who are going to add something significant to the atmosphere on the campus, and I think most Americans would see that as being a perfectly reasonable approach.

This is not a quota. We’re talking about 1,200 students in a university that has thousands of students, and there’s no evidence that this holistic review was responsible for Abigail Fisher not getting admitted. She may just not have been a particularly impressive candidate as far as the admissions committee was concerned.

Tavis: Why is it – again, I’m not asking this question out of naïveté, but why is it of all the considerations you’ve laid out, and we could talk about legacy admission and a gazillion other things –

Guinier: Right, that’s a good one.

Tavis: Legacy’s a good one that comes to mind. There’s so many other considerations that universities make when admitting people, but when it comes to challenging public policy, why is it that vis-à-vis affirmative action, race in admissions is the one issue, the narrow issue that we keep seeing come up for a challenge as opposed to legacy or some other consideration? Why race?

Guinier: Well, it’s, again, Tavis, another great question. Race is in many ways the language of class, and we don’t like to talk about class, so instead we talk about race. Because if you wanted to talk about class, you would have to concede that a disproportionate number of students who get into the University of Texas or get into most other universities, especially highly ranked universities, are the children of privilege.

So in many ways our conventional system of admission is a preference for those who are already privileged, and people don’t want to talk about that. They don’t want to concede that the SAT or the LSAT or the ACT are tests that are normed based on upper middle class white performance.

So they don’t use a test of upper middle class whites don’t do well on that particular version of the test, so there are all kinds of things that are going on in the admissions process that nobody wants to acknowledge. So instead, we talk about race because that’s something everybody can see, and it’s something that people still don’t quite feel comfortable with in terms of how we’re going to move to a society in which we not only welcome diversity in terms of university admissions.

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 historically and over the many centuries to have an equal opportunity to advance in the system as other people who are coming to the United States as recent immigrants.

Tavis: What’s your sense, Professor Guinier, of how the college and university system will rally or run, rally or run, from this particular case? I didn’t quite get to law school, but I think there’s something called an amicus brief or a friend of the court brief where you can sign on to support one side or the other?

Guinier: Yes.

Tavis: So what’s the college university system, you think, going to do, run or rally on this case?

Guinier: Rally. Rally. Because it’s really important, and it’s important for interesting reasons, Tavis. Problems in the 21st century are so complex that it’s not easy for one individual, no matter how smart they are, to solve the problem.

So what you really need is a group of problem-solvers, and particularly, and this goes back to the work of Scott Paige (sp) that I’ve mentioned before.

He’s a professor of complex systems at the University of Michigan, and he says that if you really have a tough problem and you want to solve it, you need to have a group of diverse problem-solvers, because if you don’t have diverse problem-solvers, then you have people who may be coming at the problem from a very smart position but it’s all the same.

So what you want are 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’s true in terms of racial diversity. Then Anita Wooley (sp), who’s a professor at Carnegie Mellon, has done a study showing that if you want to have high collective intelligence, that is groups that can really solve problems well, then you need to have a lot of women.

It turns out that up to 80 percent women has a higher collective intelligence than groups that are predominantly male.

So this is the 21st century. We need to learn how to collaborate with people who think differently than we do if we want to solve the problems of the next century.

Tavis: Somehow I think the last comment you made will be thrown back in my face by the women on my staff, so thank you for that, Professor Guinier, (laughter) for giving them more –

Guinier: It’s true. (Laughter)

Tavis: For giving them more ammunition against those of us guys around here.

Guinier: But part of the reason it works, Tavis, is because women either have been acculturated or trained to think about social sensitivity, so they notice when people aren’t speaking and they draw them out. So it’s not something that men can’t learn, it’s just something that men have gotten away without learning.

Tavis: I take that. I got 30 seconds to go. To the point you’ve just made now, I wonder whether or not you think – it’s too big a question to ask in 30 seconds, but let me ask it anyway – whether or not you think our university and college system is too impressed with braininess, with smartness, to the chagrin, to the detriment of other factors and considerations?

Guinier: Yes, to the detriment of our documentary, because the purpose of higher education is not simply to decide who’s smart, but also to train future leaders and to train all of the graduates of an institution so that they can deliberate effectively and make good decisions that are going to benefit our democracy and all of the people in the democracy, not just the individual who’s graduating with a diploma.

Tavis: The case is called Fisher vs. University of Texas. You can read more about it, I’m sure, by going online. All kinds of stories about this case that the Supreme Court has agreed to hear, which means that we’ll be talking about it, I suspect, in the coming months.

For now, though, Professor Lani Guinier, thanks for coming on the show, as always. Good to have your insights.

Guinier: Thank you, Tavis.

Tavis: That’s our show for tonight. Until next time, keep the faith.

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Last modified: March 2, 2012 at 3:15 pm