Law professors Kimberlé Williams Crenshaw & Justin Levitt

Crenshaw and Levitt assess the Supreme Court’s affirmative action ruling and issues in other major cases.

A respected scholar on law and race, Professor Kimberlé Williams Crenshaw splits her time between the UCLA and Columbia law schools. The Harvard alum co-founded the African American Policy Forum and was a founding member of the Women's Media Initiative. She's lectured internationally and facilitated workshops for civil rights activists in Brazil and constitutional court judges in South Africa.

Justin Levitt is a national expert in election law, with particular focus on election administration and redistricting. A faculty member of Loyola Law School, he's testified before committees of the U.S. Senate and several state legislative bodies, and his research has been cited extensively in the courts, including the U.S. Supreme Court. He's as a Harvard alum and has served in various capacities for several presidential campaigns.


Tavis: This morning, 11 major cases were still awaiting Supreme Court decisions, including crucial rulings on affirmative action, key parts of the Voting Rights Act, and the legality of the Federal Defense of Marriage Act.

Earlier today, a handful of decisions were handed down; in fact, including a very limited decision – I think I can say that. I’ll find out if I’m right about that – a limited decision on affirmative action.

Other landmark decisions are expected later this week, and so tonight, I’m pleased to be joined by two great guests. Kimberlé Williams Crenshaw, distinguished professor of law at UCLA, and she also teaches at Columbia.

Also pleased to be joined by Justin Levitt, associate professor of law at Loyola law school, who is an expert in election law, focusing on election administration and redistricting. Kimberlé’s an expert on whatever she wants to be. (Laughter) Glad to have you both on.

Kimberlé Williams Crenshaw: It’s a pleasure.

Justin Levitt: Thank you very much.

Tavis: Let me – I want to start, Kimberlé, with you on a broad question before we get to these specific cases. You and I know, we’ve had these conversations a thousand times over the years – so we’re at this moment now for the next five years we are going to be celebrating, commemorating, the 50th anniversary of so many of the seminal, hallmark moments of the civil rights era.

So this year, of course, Medgar Evers, just a few days ago, the 50th anniversary of his assassination, and the “I Have a Dream” speech this summer, and the Freedom Rides, and in a year or so – later this year, the Selma march.

Crenshaw: Right.

Tavis: Selma to Montgomery. Then next year we’ve got the Voting Rights Act and then the civil rights. We have a lot of anniversaries over the next five years.

Crenshaw: That’s right.

Tavis: I raise that only because it’s interesting to me, maybe not so much to you, that 50 years after these seminal events, all of these civil rights cases are coming before the court. If that makes any sense to you, what do you, and more importantly, what should I in the audience make of that, that all these cases now are being heard 50 years later?

Crenshaw: Yeah. Well, these cases are cases that more or less 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.

So to a certain extent, almost all of these cases are really about how much is enough. None of them are about we’ve arrived. So the Supreme Court itself acknowledges that there’s still societal discrimination. In many of these cases there’s still a recognition that we haven’t fully integrated the schools, that there still is some degree of unfairness in the work force, etc., etc.

But now the question is are these methods, these remedies for discrimination creating more problems than they’ve actually worked? Have we done enough? In fact, one of the standards for releasing school districts from federal supervision is have we eliminated discrimination to the extent practicable, not have we eliminated it root and branch.

So now this is really a debate about should we continue pushing forward with active intervention, or has the intervention become the new racism? Many people actually believe that now the remedy is more of a problem than the problem itself.

Tavis: Okay, so tell me – we’ll deep-dive on this now.

Tell me – you first, Kimberlé – why it is that just 10 years after Sandra Day O’Connor says we shouldn’t even be discussing affirmative action – I’m paraphrasing. She was much more eloquent than that when they wrote it.

But the Tavis version of it is we shouldn’t be messing around with this for 25 years.

Crenshaw: Twenty-five years, right.

Tavis: That’s what she said 10 years ago. So there are still 15 – I’m not a math major, but I think it means that –

Crenshaw: We got some more time.

Tavis: Yeah, exactly.

Crenshaw: Right, exactly.

Tavis: We have 15 more years, according to Justice O’Connor, before we come back to this. So how did we get here just 10 years later?

Crenshaw: Well, so one of the things that we do have to recognize – you asked about what we might think about today in relation to the past – is that many of these cases are part of long-term strategies.

The civil rights organizations of today are largely those who are basing their strategy on the civil rights organizations of yesterday, so Center for Individual Rights, et cetera, et cetera.

These are many of the organizations bringing these cases. This is a long-term strategy, so many were disappointed, of course, with Grutter, they thought that that would be the death knell to affirmative action. So when Grutter came out, the commitment was all right, we’re going to have to continue to find sympathetic plaintiffs, particularly opportunistic policies that we might be able to use now a new majority that seems to be willing to finally pull the plug on affirmative action.

So this is like a long epic. It’s going back and forth. Each time, there’s a hope that it’s going to be over with, and each time, the court gives a little bit and takes a little bit.

So this is one that many people thought it could be the end of affirmative action. They didn’t quite get that far in this case, and in fact, the court, surprisingly to a lot of people, upheld the compelling state interest in diversity.

What they also did, though, was heighten the standard for University of Texas and now a lot of other schools in order to prove that this was narrowly tailored, meaning there’s no other way that they could achieve a substantial amount of diversity without taking race into account.

Tavis: Justin, it raises the obvious question, at least in my mind, which is, as we were discussing before we came on the air, if you knew you were going to punt – and I shouldn’t say “punt” in referring to our Supreme Court justices.

But if you knew you were going to punt it, that is to say kick it back down to a lower court, a federal court, and seven to one at that, why take the case in the first – everybody’s waiting for this big decision, this big ruling, and the answer is, “We’re kicking it back down to a lower court.” Why take the case if that’s what you’re going to do?

Levitt: I think you can find a lot of negotiation going on. It’s part of the reason why the case was argued in October and we waited until today to get a decision. I think in part, there’s a lot of discussion in that interim period what this opinion’s going to look like.

You’ve got two very strong voices wanting to say we’re not going to have any more race-conscious decision-making in education pretty much period. You’ve got the rest of the court not willing to take that hard a line, and you’ve got justice Ginsberg holding up the dissent, saying essentially what you just said 10 years ago – all this is fine. We shouldn’t even 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 going to be good enough, how much of a state interest, how much the University of Texas could say it was considering race to be good enough.

In the process of that negotiation, I think what they found they could agree on is we’ll send this back and we’ll see if we get a better answer that clarifies things in the court of appeals.

Tavis: That’s a charitable and generous way of saying that this ain’t the case they really want.

That’s for those members on the court who are more left-thinking and those who are more right-thinking, for all that we want to act like our Supreme Court isn’t political, we know what this divide is, typically this 5-4 divide on the court.

So here’s the question for you, Justin. So then what are the conservatives on the court looking for vis-à-vis the right affirmative action case, and I’ll let Kimberlé answer the other problem – what are the liberals on the court looking for vis-à-vis the right affirmative action case?

Levitt: I think they’re looking for a case without quite as many problems as this case particularly presented. So this plaintiff came with a lot of hurdles to get up and into court, not least of which is the fact that she has to prove, like all plaintiffs have to prove at some point, that she was injured, she was hurt.

Tavis: This is Ms. Fisher.

Levitt: Ms. Fisher, Abigail Fisher –

Tavis: Right, right.

Levitt: – who applied to the University of Texas and was turned down, finished her studies at LSU, is now out in the working world, has to prove that in some way, what the University of Texas did was harmful to her.

The University of Texas has said throughout, whether we consider race, whether we wouldn’t have considered race, you weren’t going to get admitted anyway. Didn’t matter.

Tavis: Ouch.

Levitt: For the conservatives to rule taking this case as the quintessential case where somebody got done wrong may have been a bridge from the facts too far. I think they’re looking for something that’s more sympathetic of a plaintiff, and something where frankly, the university or another educational system misstepped in a bigger way.

Texas’s decisions based on race were nuanced. They took each individual into account, which is what the Supreme Court said 10 year ago you’ve really got to do, and they may be looking for a government entity that uses race far more as a proxy for all sorts of other stuff and less as a holistic examination of each individual.

Tavis: So the other side, Kimberlé, Ruth Bader Ginsberg, Elena Kagan and company, what case, to the extent they have to deal with this obviously, in this society, in the most multicultural, multiracial, multiethnic America ever, it’s going to have to be dealt with some way, somehow, someplace, what’s the optimal case they’re looking for?

Crenshaw: Well, interestingly enough, there were ways that Texas was optimal for them, because it did feature a person who couldn’t really say that this was an injury to me.

So basically, the standing question all is about what is the injury to you that the University of Texas has race-conscious admissions when there’s no evidence you would have gotten in at all.

So what’s a little sobering about it is that they didn’t say anything about the standing question, so more or less affirmed the idea that she does have something to complain about. Just the very fact that – the claim is that her dignity was undermined by having to compete in a system in which race has some kind of value, even though she might not have gotten in.

So the court’s really been moving in a direction that really allows many white plaintiffs to make arguments, even though they can’t show, like, some other typical kind of reverse discrimination case, I was more qualified than X and Y, and I didn’t get in.

So one might have thought this could have been the case if they were to get any swing voters to say there’s a difference between having a race-conscious program and any individual being able to claim reverse discrimination, and they weren’t willing 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 that they’ve tried race-neutral alternatives and they don’t provide the substantial amount of diversity that’s necessary.

So they’re going to have to jump through some kind of evidentiary hoops to show we just can’t get there without race.

Levitt: There’s another thing that the left wing of the court, if there is a left wing of the court, might have been looking for, and that’s company. So Justice Kagan was recused from this case. She had to sit this one out, and we don’t really know why, but we suggest it’s because she handled the case in some way when she was solicitor general.

She’s a former law school dean, so she knows real well the challenges involved in pulling together a diverse class from all sorts of places. It may well have been that the strategic decision was let’s sit this one out until we have more support on our side of the issue.

Tavis: So Kim, let’s talk now about the pending decision on the Voting Rights Act.

Crenshaw: Well, the Voting Rights Act, as you know, is based on the notion that there’s some jurisdictions that 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 Department.

Many of these states have bristled under this for some time, the concern being that this was based on what happened a long time ago, we don’t do this anymore, and basically, it’s kind of interesting.

The states are making a kind of dignitary harm like Fisher is making, which is we’re being carved out of the whole country as being those states who are stigmatized by having to carry this history that you’re talking about earlier of race discrimination, and consequently, this dignitary harm to the states is something that Shelby County is arguing against.

They’re basically arguing that even if it was constitutional way back in the 1960s, every time Congress reauthorizes it, they reauthorize it not based on current events but based on this long-term history.

So the question is whether or not the Voting Rights Act is still constitutional with respect to those particular states, or whether the time is basically over and these states should be treated the same as all others.

So they haven’t made a decision about that yet. We were just talking about what we think might happen there.

Tavis: What do you think might happen on this provision of the Voting Rights Act?

Levitt: Well, I’m still one of the optimists here. You have to look – this is really a congressional decision to make, and a lot of power is given to Congress explicitly by the Constitution.

Just as, as you as you say, we read the words of the Constitution, it starts off with the 15th Amendment that says you can’t discriminate based on race in the voting process, and Congress is the body that gets to decide how we enforce this provision.

It’s right there in the text. When Congress reauthorized in 2006, the vote was 98-0 in the Senate, including Alabama, including Mississippi, including Georgia, including South Carolina. All those senators said yes, we may be bristling a little bit, but this is still strong medicine and still good medicine.

And 390-33 in the House, which included more than a majority of every single delegation in the country, including Mississippi and Alabama and Georgia and South Carolina.

So Congress knew what it was doing in 2006. You add that to the fact that it’s not just based on 1965 and how things were in 1965. The formula basically says if democracy was broken, if less than half of the eligible public was participating in the ’60s and in the ’70s, if we have a majority rule system and the majority’s not even playing, then you have to come to the feds for specific approval before you change your election laws.

If a state’s been good, it can get out from under this regime. There’s something called bailout that says if you’ve done right by your minority population for 10 years you can ask a court, hey, let me out, and every single jurisdiction that’s asked has gotten out.

So the only folks left are the ones who either haven’t thought it was burdensome enough to ask to be let out, or can’t get out because they haven’t done right for 10 years.

So the coverage of this strong medicine is still applied to the jurisdictions where we really have the most concern.

Tavis: I mentioned earlier there’s so many cases, and I started one way and I shifted. I’m going to shift back in just a second. (Laughter) We’ve been talking now about the Voting Rights Act.

Crenshaw: Right.

Tavis: This particular provision that we will get a decision on later this week about what happens to this piece of the Voting Rights Act. John Lewis, congressman from Georgia, marched with Dr. King, the last living person who was one of the major speakers at the March on White House said the other day, Kimberlé, that if the court strikes down this provision, it’s time to go back to the streets. Is it that serious?

Crenshaw: Well, I’m one that’s partial to the idea that much of what this court is doing is just eating away at the fabric of civil rights protection. It’s death by a thousand cuts.

So we’re celebrating, to a certain extent, the fact that Fisher didn’t go down exactly the way we thought, but they’re 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. So there is a sense in which the court is moving about like termites. They’re eating at the structure of civil rights protection, and it doesn’t really support the kind of aspirations that it did when it was created.

So 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: So we’ve talked about affirmative action, the case that got sent back down to a lower court today, we’ve talked about the Voting Rights Act and this particular provision that we are concerned about what the court will do and say on it later this week.

There was another decision today on a provision of the Civil Rights Act.

I started to say that a lot of people are concerned about those who do this kind of human rights work. Justin, your thoughts on what happened, and just kind of explain what happened on that case today.

Levitt: Sure. Well, there were actually two different cases on the Civil Rights Act, on Title VII of the Civil Rights Act.

Tavis: Right.

Levitt: It basically says that if you’ve been discriminated against based on gender, based on race, based on religion, that you can go to a court and get a remedy for it.

It’s talking both about whether you’ve been discriminated against or whether you raise a claim of discrimination and then have something happen to you – retaliation for raising a claim.

The court cut back on plaintiffs’, on workers’ ability to get paid if something bad has happened to them today in two different ways. The first way is they made it – and perhaps the more significant way – is they made it a lot harder for plaintiffs to prove that they were fired because they raised a discrimination claim. Now it’s up to them to show –

Tavis: So they raised the bar. Sounds like – in layman’s language, it sounds like they raised the bar and shifted the burden of proof.

Crenshaw: Exactly.

Levitt: That’s exactly right.

Tavis: All right.

Levitt: Now if you think that you got fired because you were angry about being discriminated against, there’s a lot more that you’re going to have to show.

That’s going to be pretty hard for you to show in a court, or at least that’s what people are worried about.

The other decision, the companion decision in some ways, talks about whether you can essentially bring a case against somebody who’s not a direct supervisor, but against somebody who may tell you what to do without being able to hire or fire you. A co-worker with some special authority.

The court made that harder to get money back from business, to get money back from the employer in those cases too. It’s not that they’re cutting these claims off entirely, all right? People aren’t left entirely out in the streets.

It’s narrowing, it’s shrinking, it’s constraining, but the court is always careful to say, “Hey look, there are still these little avenues,” so as not to make it seem like what they’re doing is a really big deal.

Tavis: Yeah.

Levitt: Even though it has a big practical impact.

Tavis: What’s fascinating for me, Kimberlé and Justin, is, and “The New York Times” did, I think, a really good story, a good piece about this the other day, and that is this – my phrase here – this philosophical debate that’s happening in our society these days about formal equality versus actual equality.

It’s one thing to say to the letter of the law this is what equality looks like, but it’s another thing to take into consideration the historic issues that go along with how you get to actual equality.

Give me your sense of where this debate is headed and how it impacts our society, how vis-à-vis public policy we address this debate that is much more – it’s not just philosophical, it’s actually practical, about juxtaposing, balancing this notion of formal equality with actual equality.

Crenshaw: Well, and that’s probably the most interesting part about today’s decision, because you have Justice Thomas on one end and Justice Ginsberg on the other, and they’re representing these different ideas.

The one idea being that equality is realized when people are treated symmetrically, and very narrowly symmetrically. So Clarence Thomas has a very long discussion of how the use of race today is exactly the same kind of use of race in the past.

So by that measure, using race to include people is the same as using race and segregation to exclude people. So it’s the idea of formal equality. In some ways, it is a replay of one of the most infamous cases we have, Plessy vs. Ferguson, because the court in Plessy didn’t say that the 14th Amendment permits inequality.

What they said was segregation was not unequal because Blacks and whites couldn’t sit in each other’s cars. All the asymmetries around segregation, the symbol, the message, the conditions, pushing people into second-class citizenship, those are all asymmetries of race, and those are asymmetries that Justice Ginsberg says the 14th Amendment has something to say about.

So you’ve got this difference between Clarence Thomas, who’s basically saying all of the asymmetries, the fact that race doesn’t mean the same thing, the fact that there are all sorts of conditions that are associated with race, all of that is in the social world. That’s societal. Has nothing to do with discrimination.

Then you have Justice Ginsberg saying you can have discrimination by treating people who are the same who are different, and you can also have discrimination by treating people who are different as though they were the same. That’s her position.

It was a dominant position at some point, and basically the last couple decades has been a move away from people are differently situated to it doesn’t matter, we’re all the same. We all have a race; we’re all treated equally if our race isn’t taken into account.

Tavis: I guess the exit question, Justin, is whether or not this is an intractable issue, given that, as I said earlier, we live in a multicultural, multiracial, multiethnic America. If it’s not intractable, how do we get to it?

I’m not asking you for the solution, bright as you may be. How do we get to a solution, if it’s not intractable?

Levitt: Well, part of getting to a solution is, I think he’s right, is taking to the streets, and not necessarily in marching and it’s not necessarily in wanting to throw people out, but in making sure that citizens who actually care about this stuff are active.

So we see people pay attention to the shiny political races, the president, maybe the U.S. Senate, maybe, maybe the Congress. But really, if people actually take to the streets and get informed about local government, about city council, about county commission, and about who it is in their state legislature, that makes an enormous difference.

Part of that makes an enormous difference because although the court keeps pushing back and saying government has to treat people formally equally, it’s really just on the surface.

Governments that are aiming to do the right thing by the people, and that takes the people paying attention, actually have a lot of tools they can use. Government can go recruit in heavily minority neighborhoods. Government can go put ads out for government contracts in heavily minority businesses.

Government can, and Justice Ginsberg pointed this out, the University of Texas has a 10 percent threshold that says everybody who graduates in the top 10 percent automatically gets into the UT system. Justice Ginsberg says let’s not pretend that’s race-neutral.

Crenshaw: Right.

Levitt: That was decided enormously because they recognized different schools, different high schools, different colleges, have different ethnic and racial enrollments, and if you take the top 10 percent each, you end up with a pretty diverse group in UT’s undergraduate system.

If surface equality is all that the court’s willing to enforce or all that it’s looking to press down, then a government that actually is looking to do the right thing, which takes the people watching and takes the people being active, has a number of tools at its disposal.

Tavis: I hope this conversation – it has for me – I hope this conversation for you has helped explain a bit better what some of these decisions today were about and what these pending decisions later this week will be about.

I suspect we’ll have this conversation again in the coming days as these cases unfold. For now, Justin and Kimberlé, thank you for coming on.

Crenshaw: Thank you, Tavis.

Levitt: Thank you very much.

Tavis: Sharing your insights, I appreciate it. I feel a little smarter now. (Laughter) That’s our show for tonight. Thanks for watching, and as always, keep the faith.

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Last modified: July 1, 2013 at 1:52 pm