hold? the race for admissions, it's "inside story"." ♪ ♪ welcome to "inside story." i am ray suarez. during an earlier wrestling match in texas over considering race and ethnicity in college admissions the university of texas system came up with a plan guarantee any kid who finishes in the top 10% of their high school graduating class a place in the university of texas. that way the reasoning went, you would get the best students, you wouldn't use race and he had let at this in making admissions decisions and you would still get a diverse student population because black and latino students in texas tends to go to high schools with heavily black and latino student bodies. abigale fisher says she always dreameds of going to the flagship u.t. school in austin, but she graduated outside the top 10% of her graduating class in sugar land, texas. fisher says she would have been admitted but that the 10% system granted admission to some kids less qualified than she was. the supreme court saved the texas system, fisher went onto college in louisiana. graduated and is out and working. but her case is back for another run at the nation's highest court. >> reporter: the supreme court is entering a new battle over the future of affirmative action in universities. the consequences would be striking if the justices side with the plaintiff abigale fisher. she's suing the university of texas at austin saying its admissions policy violated her civil rights think she claimed when she applied in 2008, the college turned her down in favor off of minority student with lower grades. >> i was taught from the time that i was a little girl that any kind of disgrim was wrong and for an institution of higher learning to act this way makes for sense to me. in her 2011 lawsuit fisher claimed that the university's admission says program favors two groupings, african americans and hispanics in one of the most ethnically diverse states in the united states. but the college's president is defending its practice. saying in a statement our admissions policy is narrowly tailored, constitutional and has been upheld by the courts multiple times. >> what starts here changes the world. >> reporter: the college says based on texas law it accepts students graduating in the top 10% of their high school classes regardless of race. students not in the top 10% can still get in, depending on criteria like their talents family circumstances and race. fisher was in the top 12% of her senior class. her case made it to the supreme court once, the justices sent the case back to a lower court which sided with the university. the school's then president praised the decision. >> one of our core arguments all along has been the educational value of diversity to all of our students regardless of that irrelevant back ground. >> reporter: supporters of affirmative action fear with the supreme court taking up case for a second time. conservative justices might limit or even do away with racially-based preferences in higher education but opponents have long argued that giving an extra boost to historically disadvantaged mind or at this is his a kind of reverse discrimination. >> i am grateful to the justices for moving a step closer to the day when race is not used at all in university admissions . >> why is this case back and does it have the potential to take down what's left of the use of race and he had net tig as one tool among several in making college admissions decisions i am joined pie beater jacobs education reporter for business insider, peter how did this bounce back? it lost at the supreme court level. sent back down, abigale fisher lost again does she keep -- does she still have the opportunity -- how does she still have the opportunity to take this back to the high court? >> well, she wouldn't have the opportunity if the justices didn't think that there was some action they could take. the common thinking is that you need four justices in order to rehear the case. and the justices wouldn't have voted to rehear it if they didn't think they would be able to take action. they believe they have the votes and she i guess capitalized on that and realized that she had a strong chance i think of being heard and having her case potentially be granted. >> the supreme court famously is not a trier of fact. it's an an appellate court. so what are the justices being asked to decide? >> whether that she was discriminated against or not. whether it was some infringement on her rights by not admitter her in favor of another student based on their race. >> but this has a potential to change the system for the u.t. students from now on even though she's finished with college and moved on with her life. >> sure. if the university -- if the supreme court find that the university system was flawed. they could rule that they would have to remove race from their considerations. if that happened, it's likely that that could have effects throughout the entire country on any sort of admissions policy at public universities. >> it's interesting this is back in the dock again after texas so carefully tried to do an end around by using the 10% system, you, in effect, say it's not your race we are looking at, it's your class rank. >> it's kind of an interesting system where they sort of acknowledge that there is segregation in their state. and making the argument that they can use that in order to help people end up with their flagship school. but they have to take race in to account when they are looking at the other 25% of the class that's not coming from there. that's where it sort of gets in to the tricky matter. and then the question is, is there a way that they can be doing this without consideration of race entirely. or do you need that extra 25% that's coming in potentially with a racial consideration. >> what's the verdict or has there been a verdict on whether texas' 10% system has worked to create a diverse student body at the flagship school? >> i think by all accounts it is working. texas has a diverse student population. predominantly coming from this program. and constitutionally it's been upheld as a mean to his tree eight diverse class. >> and so really, i guess attention is going to focus on that second pass group after you take that first pass and take the top students, they still have to fill another 25% of the seats and that's where it gets tricky huh? >> exactly. admissions officers use what they call holistic college admissions to sort of look at candidates on a bunch of different qualities, race is allowed to be one of those qualities. but it could also be grades, it could also be potentially a legacy status, it could be a musical instrument talent and what abigale fischer is arguing is that she had better grades, she had better extracurriculars than other students -- but they were accepted instead of her because of their race. and to her that's a sign of discrimination. because of someone else's race, they were accepted instead of her, a white woman. >> you mentioned at the outset a certain number of justices have on sign on in ford a case to be recertified. has the court's composition given abigale fisher a better shot this time around? >> definitely. the composition is not changed since the case was last heard that would affect this. except for the fact that there has been reports coming out that last time the court was set to rule in favor of her. there have been reports in a recent by on the ground rave biography of justice sotomayor that the court was about to go 5-3 in favor of fisher's claims but were sort of persuaded in to an agreement where they would send it back down to the lower courts. what it explain second degree "america tonight" that justice sotomayor drew a lot on her background background. >> reporter: that she persuaded another justice to his sends it back down. >> peter jacobs is the education reporter for business insider thanks for you can with us. as the fisher case head back to the high court. relook atta firm tiff action, does historic disadvantage and contemporary segregation combine to create a need to be even a little race conscious when putting together fresh men classes for admission to in public institutions? is affirmative action a relic or a sign that its work still isn't done? the race for its admissions is tonight's inning "inside story." ♪ ♪ you are watching "inside story" i am ray suarez. fisher versus the university of texas is back. its target a formula that uses not race but class rank to achieve racial and ethnic diversity in the public university system in texas. it worked toward that end by leveraging persistent levels of segregation this the state's high schools. was it really racial preference that kept abigale fisher out of the university of texas at austin? or her own decent, but unremarkable transcript as she tried to get a place in a school that fills more than 90% of its seats using the top 10% class rank system. could fisher part two unravel what's left of affirmative action in public colleges and universities. i am joined by attorney andrew grossmann an associate at the washington law firm baker hostetler and luis maldonado chief advocacy officers at the has panic association of colleges and universities great to have with you with us, andrew grossmann has the court greed broadly over the last couple of cases that diversity is a desirable goal to public universitys? >> well, what the court has decide second degree that diversity is the only conceivable goal that a university can attempt to further when -- by considering the use of race in admissions. and it has to do that -- it can do that only when it's absolutely necessary in a numerical. it's a broad rule that the government has to be color blind in its options . >> if i understand this correctly, if they decide that left for sort of things to take care of themselves, you wouldn't end up with a diverse class, you are allowed to put certain other considerations in to the mix in order to get one? >> that's right. it has to be part of a holistic inquiry. it can't be a wrote extra tents points or a brick on a scale it has to be done in a sensitive fashion. the argument here is that's natural not what the university of texas has done they have used race in a way that at about zest quite arbitrary. >> luis, how is this system worked? texas one of the largest state system in the country a good laboratory for us to see if this kind of system would work in place of a color conscious system. >> we support diversity and inclusion at institutions of higher education, we think the system works. we support the interests that the government has to make sure that our public institutions are reflective of faces in our community to shape our future society and the contributions that these members can offer. >> if texas took down that system if the fisher rehearing results in that system being taken down, would it change the complexion of you feel it. campuses arm the state? >> it may. it may very well change the faces that are gaining access to these institutions. the university of texas is a very large system. there are several campuses of the university system that are very diverse. went to make sure that that applies throughout the public system and texas a. & m and all the other public institutions in texas as well. >> andrew grossmann does army fisher have to demonstrate that she shoved some sort of injury in order to prevail? >> it's a very interesting aspect of this case that throughout the university's challenge ab game's fisher her very stand to go bring this litigation on the basis they say she may not some got then. in briefing over the case the university itself admitted if they didn't have a racial preference program at all, that they couldn't tell, make she would have been above the line, below, the university says they ever no way of knowing. >> how do we know in the case of abigale fisher it's racial preference? five black students with worse grades than she has did get in to the school. but so did 42 whites. and 168 black and latino students with similar grades were denied at mission. so can't she just look at this, can't an objective outside authority look at this and say that's the breaks? >> the authority with the greatest interest in this is the university of texas which has all the admissions data and knows everything that occurred in the admissions process. and they have not been able to say that she wouldn't have gotten in to the university of texas if they didn't have this program in place. and i think it's very unfortunate that, you know, a lot of people have used this as an opportunity to question her intelligence, her ability and really kind of put the screws to someone who has had the courage of her conviction to his stand up in a very public and very difficult way to stand up for her beliefs . >> i think in this characters abigale fisher may now understand everybody better than she did before how black and los angeleslatino students constantly have their talents their intelligence and fitness for college education questioned. luis maldonado is a student any individual student such a mix of attributes that comparing one to another just starts to get really hard? >> admissions process is very complicated. students arrive at university and get -- gain admission through very different means. athletics, talents i think the i want truck are you piece mentioned a few of them. so it is a very complicated issue and we believe and support the idea that the institution must be reflective of the society in which its graduates will work. that the educational opportunity on campus is benefited is improved by the diversity of not only color of skin or culture but also in thinking, ability and productivity. >> but isn't an applicant from south texas who may have gone to a not particularly good school but graduated in the top of his class if the you feel it. system says, you know, jose, you are better off at u. testimony el paso or midland owe dose dez a you have a better shot at graduateing from those places than austin, are you doing that kid a favor by waiving him in to the flagship university because he clears that 10% hurdle? >> admissions, it's just part of the equation of what you are describing. their ability to cover the expenses and the costs associated with being able to enroll, that where that issue comes in to play, if we look at hispanic students in texas california florida across the nation where hispanics are concentrated in institutions, that provide them access, financial aid comes in to play in that particular piece. >> luis maldonado andrew grossmann, stay with us being the use of affirmative action even in its limbed it mod attorney forms hasn't recipients indicated incoming freshman classes across the country that look like america while at the same time it's brought anger and backlash there many white families. is there any place where using race and ethnicity in admissions in 2013? and if so, is there any way to do it that can survive judicial scrutiny? the race for admission second degree tonight's "inside story." >> this has preservation on a scale that no other sites have. >> under threat by global mining and scheduled for demolition. >> mes aynak is one of the most important sites in the century. >> with time running out... >> they're losing everything. >> can archeologists stop the clock? >> this is rescue archaeologic - we are trying to excavate as fast as possible. we are back with "inside story", i am ray suarez, race for admissions this time on the program. fisher versus the university of texas is heading back to the supreme court. and we are looking at the use of race and ethnicity as factors in making admissions decisions in public colleges examine colleges and universities luis maldonado is still with me. as is washington attorney andrew grossmann. and andrew, earlier you talked about the burden on using race and ethnicity in making admissions decisions. is there any way to set up a scheme that doesn't run a foul of the current made rick matrix that can work in a big state system like texas. >> for advocates of affirmative action they should be very nervous that the system that's actually gunning for the court is the university of texas it has very unusual attributes to it. according to the university of tenges a thousand students a year. the racial considerations only amount to admissions of perhaps a couple of students a year it's of 10s of thousands of total admissions the supreme court held that you have to have a close fit when you are considering race between your need and what it is you are actually doing. in this instance the university claims this very substantial need and classifying all these people but not really doing anything in terms of admission so i think they'll have a very tough time actually justifying even under the law. >> can you see a way luis maldonado, that affirmative action can survive this appeal? >> we hope it does. if we look at the investment that the state of texas is making in education, we need to make sure that students who come from families that are low income, who come from families that are first generation, who are accessing higher education for the first time, who need assistance for that path, they need access to these institutions that provide them an equaling opportunity to gain that education. our future, economy and output as a nation will depend on our education workforce, this time year for the if tires in him our country if you look at the population in the k 12 system, in the public system of this country, for the first time the majority of students were minority students. that ratio will only increase it will never go back to the way it was before. these students -- >> why not just let time take care of this. the entering classes in six years, seven years, eight years will of needs be diverse because there's who the applicants pool is going to be. >> i don't think we can afford to wait that long. also institutions like the university of texas and all of the other hits hits panic institutions all 409 are making great strides to return higher ed students and first-time adult students to come and earn an education so that they can improve the opportunities that they can have employment. so this is not just about the student who are graduating from high school. it's about the entire population who is interested in gaining an education that is so well documented is the ticket to the middle class in this country. >> andrew, there is a lot riding on how the justices rule? could they rule narrowly and not end up taking this down all over the country? or rule broadly and end up having a lot of effect in california, in florida in new york, and other places. >> there could be a lot of effect. i think one thing to keep clear is this case isn't about whether affirmative action is legal or not. it's not part of the question that the supreme court agreed to hear. what they are doing is tinkering with the exact formula in the way that a university has to justify what it's doing. i think we can all agree that if the government is going to take advantage of race, it has to do so if a way that's accountable transparent, and that legitimately furthers substantial government interests. >> how do you measure? how do you put together a proof that something is of value when it's a per severed value? i have talked to university presidents all over country who endorse this idea that a diverse class is good for both their mind or at this and majority students but they can't necessarily give you have a schematic diagram that shows exactly why or how. >> well, i think what a number of schools have done is conduct study where his they try to delineate as carefully possible what their goals are and then taylor their admissions programs to achieve those goals. and the thing, is that's not what the university of texas did here what they did here is window dressing in a cynical fashion and it's not going to help them before the court. >> it's true enough. all they did was leverage their segregated schools as a way of not taking race in to account. do you have a problem with that in. >> we should not take the thomas edson approach to finding a what i to make our institutions diverse. we should not have to go through 10,000 different plans before we find the one that works best. we are already know that the diversity has an improved result in the admissions and graduation rates of these institutions and that's why we support it. >> luis maldonado andrew grossmann thank you for gypping me on "inside story." fisher versus texas heads to out in the new term that starts in october i'll be back in a moment can with a final thought on race, class and college, i am raw suarez and this is "inside story"." affirm five action in its earliest forms was meant to address the gross inequalities in life chances wealth accumulation and opportunity in this country. inning he qualities that resulted from generations of as a testimony atticly rigged institution that his denied good housing, good education and a chance to compete for good jobs for decades it's also been easy what out for a society in which talent, energy and creatively is widely distributed but the rewards for those attributes are not. it's the easy way out because it's much harder to fix to address what's wrong with the way we funds k to 12 schools in america. how we maintain them, staffer them and the quality of instruction. it's much harder to be honest about how race shapes your life at six 12, 14 years olds. it would be harder to talk about how race still shapes chances in america. we try to play catch up with 17 and 18 year olds trying to address some of the inning equities in our freshman classes at public colleges, public colleges, they belong to all of us, they paid for by all of us and the way the debate over affirmative action has rolled out over my entire lifetime, it sound like some of us would be perfectly comfortable with a state quality where all of us chip in but only some getting to to. race still matters but push button solutions only make people angry and burden the beneficiaries with a taints right along with the advantage they get from no longer being locked out. so it's include indicate. like america, i am ray suarez, that's tonight's "inside story." ♪ a u.n. brokered truce comes in to effect in yemen while people wait for much-needed surprise. ♪ ♪ welcome to al jazerra live from our head quarters in doha, i am elizabeth. also ahead. the greek parliament revises an exhibit planned ahead of a crucial eurozone meet on the ground a new bailout. plus. >> reporter: i am reporting from near srebrenica where the genocide 20 years ago continues to cause division and pain. and rebuilding