Dorian Warren on the Future of Affirmative Action at the SCOTUS

Roosevelt Institute Fellow Dorian Warren appeared on MSNBC's The Last Word with Lawrence O'Donnell this week to discuss how the Supreme Court will handle the controversial case of Fisher v. University of Texas, in which the white plaintiff alleges that the school's affirmative action policy is a violation of the Equal Protection Clause.

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O`DONNELL: With 259 days to go until the presidential election, tonight I
am going to skip over 258 reasons to vote and tell you the number one
reason to vote for president of the United States.

Over the course of the campaign, we will have plenty of time to return to
the discussion of the couple of hundred reasons to vote for the president
and it is very likely that we will discuss the number one reason several
times before the end of this campaign.

And, of course, the number one reason to vote is the same number one reason
you always have to vote for president. The Supreme Court of the United
States. The president chooses justices for the Supreme Court subject to
confirmation by the Senate. Choosing a Supreme Court justice is the most
momentous decision a president can make. Supreme court justices stay in
power longer than any war we have waged. They can stay there for the rest
of their lives if they choose. They are the final arbiters of fairness and
justice in our society.

And today the Supreme Court agreed to hear a challenge to the University of
Texas Austin`s admissions policy. The university says it is firmly
committed to a holistic admissions policy that is narrowly tailored to
achieve the educational benefits of a diverse student body.

But in the case Fischer University of Texas, Abigail Fisher contented she
was not admitted to the university in 2008 because she is white and that
was a violation of her civil and constitutional rights.

In Greta versus Bollinger in 2003, the Supreme Court said race could be
used as a factor in the admissions process at the University of Michigan`s
law school.

Joining me now is Dorian Warren, assistant professor of political science
at Columbia University and a fellow at the Roosevelt institute in New York.
Dorian, I want you to do this thought exercise tonight. I want you to
imagine the Republican won the last presidential campaign which means that
the two appointments to the Supreme Court made by President Obama, justice
Soto mayor and justice Kagan, would have been two Republican appointments
to the Supreme Court. There would have been seven Republican appointed
justices, three democratic appointed justices. What would be the fate of
this case, a case like this, in front of a court like that?

DORIAN WARREN, COLUMBIA UNIVERSITY: In front of a court like that,
Lawrence, I think there`s no question they would be eager to strike down
the brother of Bollinger case.

As you mentioned from 2003, which said that race could be one of many
factors used in college university admissions. And I`d like to point out
that in that case, that case drew the most amount of amicus briefs in
history of the - in the history of the Supreme Court from fortune 500
companies to the military who all agree that diversity is an important
national -- it`s an important national interest to advance diversity,
especially when it comes to leadership.

O`DONNELL: And Sandra Day O`Connor was the decisive vote in that case.

WARREN: Indeed she was.

O`DONNELL: She`s been replaced by a much more conservative Republican
justice on the court, Alito, who I don`t think there`s much doubt about
which way he`s going to go on this. And the thing that I think gets lost
in any affirmative action discussion is the understanding of what makes for
the dynamism in education that produces the net result of what we might
call the educated man, the educated woman. And I know that in college the
student body was educating me as much as the faculty was.

WARREN: Yes.

O`DONNELL: With all due respect, professor. But it`s those conversations
at 2:00 in the morning. And the fact that I got to know Bobby Sims from
Mississippi, whose father grew up a sharecropper, was a very, very
important opportunity for me. And that`s what I think is lost in this is
that it`s not all about tests and numbers.

WARREN: That`s right. The court in 2003 argued that a critical mass of
underrepresented students was important to have on college campuses.
Again, for the purpose of advancing an open pathway to leadership for all
people in this country.

It`s important to point out, also, that, you know, Texas excluded
explicitly nonwhites from admissions at all levels of their university
system until 1950 when the Supreme Court then had to intervene to, for the
first time, allow blacks to enter the law graduate school there.

So, there`s a long history of racial exclusion in Texas. And today, when
you look at the numbers, roughly three out of the four students at
University of Texas are white, even though whites make up only 50 percent
of the high school graduates.

So, they`re already overrepresented arguably at the university and blacks
and Latinos are still underrepresented relative to their numbers in term of
who`s graduating from high school.

O`DONNELL: It seems to me these kinds of cases are trying to invade the 
admissions process and say, we know what criteria you should use and the
criteria for admission is purely a set of numbers and letters called
grades.

WARREN: Yes, you know, the last thing to say about this is it`s still
unclear if Fisher even has standing to sue because she went to another
university and she`s graduated, I believe, or she`s about to graduate. So
by the time the court hears the case, it`s unclear that -- they`ll have to
decide this question. It will be interesting to see how they decide it.
It will be interesting to see if she has standing because of receiving some
kind of harm from the Texas admission policy.

O`DONNELL: Professor Dorian Warren, thank you very much for joining me
tonight.

WARREN: Thanks, Lawrence. Thanks for having me.