Supreme Court Justice Antonin Scalia

Supreme Court Justice Antonin Scalia

WASHINGTON – Supreme Court Justice Antonin Scalia’s view that students of color are better matched at “a less advanced …slower track” schools than at the nation’s top-tier universities is a myth that has been thoroughly debunked. 

Scalia touched off a firestorm last Wednesday as the Supreme Court heard oral arguments in Fisher v. University of Texas-Austin, a case brought by a rejected White student challenging the university’s affirmative action program. 

The university selects 75 percent of its freshmen class (some years it has been as much as 92 percent) through a process that guarantees admission to the top 10 percent of each high school graduating class. The remaining students are chosen through an individualized affirmative action program that considers such factors as demonstrated leadership qualities, extracurricular activities, honors and awards, essays, work experience, community service, and special circumstances such as applicant’s socioeconomic status, family composition, special family responsibilities, socioeconomic status of applicant’s high school and race. 

Even though to points are assigned to any category, Abigail Fisher decided to sue on the basis of race, saying the consideration of race violated the Equal Protection Clause of the 14th Amendment. However, the university said she would not have been accepted even if no affirmative action program were in place. 

Scalia  said, “There are ­­ there are those who contend that it does not benefit African­ Americans to ­­– to get them into the University of Texas where they do not do well, as opposed to having them go to a less­-advanced school, a less –­­ a slower­-track school where they do well. One of ­­– one of the briefs pointed out that ­­– that most of the –­­ most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re ­­– that they’re being pushed ahead in –­­ in classes that are too –­­ too fast for them.” 

Scalia, who was appointed to the Supreme Court in 1986 by Ronald Reagan, shifted from the “some people” straw argument to express his deeply personal view, which many public figures have since condemned as blatantly racist. 

He said, “I’m just not impressed by the fact that –­­ that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe some — ­­ you know, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less. And ­­– and I –­­ I don’t think it –­­ it ­­ it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.” 

To his credit, Gregory G. Garre, one of the attorneys representing the University of Texas, immediately challenged the core of Scalia’s argument. 

He replied, “This Court heard and rejected that argument, with respect, Justice Scalia, in the Grutter case, a case that our opponents haven’t asked this Court to overrule. If you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they ­­– they fare better. And, frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools. I think what experience shows, at Texas, California, and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America.” 

Al Sharpton told supporters on the steps of the Supreme Court after the oral arguments, “Scalia says Blacks ought to go to schools that are not as hard as the University of Texas, that is not as fast for them. I didn’t know if I was in the Supreme Court or at a Donald Trump rally.” 

Scalia, the longest serving justice on the Supreme Court, was parroting a friend-of-the-court brief filed in support of Fisher by the conservative Pacific Legal Foundation and another one filed by University of San Diego law professor Gail Heriot and Cleveland attorney Peter Kirsanow, congressional appointees to the U.S. Commission on Civil Rights. 

Matthew Chingos, a scholar at the Urban Institute, noted “ remarks reference the so-called ‘mismatch hypothesis,’ which posits that minority students are harmed by policies that allow them to attend competitive colleges for which they lack adequate academic preparation. 

“Mismatch is possible in theory, but it presents an empirical question as to whether selective colleges admit students who would be better off at less challenging institutions. Straightforward comparisons of students with similar academic credentials who attended different colleges consistently find that students are more likely to graduate from more selective institutions. This finding holds for all groups of students examined, including underrepresented minorities and students with weaker academic preparation.” 

A group of 11 experts in quantitative social science filed a brief urging to the court to ignore the mismatch theory because it “does not constitute credible evidence that affirmative action practices are harmful to minorities.” They said study contained “major methodological flaws – misapplying basic principles of causal inference – that call into doubt his controversial conclusions about affirmative action.” 

In short, they said, the research “is not good social science.” 

A friend-of-the-court brief filed in support of the University of Texas on behalf of 39 undergraduate and graduate student organizations in California thoroughly discredited Scalia’s position. 

Their brief noted, “But various studies provide empirical evidence that the ‘mismatch’ theory is nothing more than a myth,” they said in their court filing. “Indeed, underrepresented minority students graduate at higher rates when they attend selective institutions. See, e.g., Sigal Alon & Marta Tienda, Assessing the ‘Mismatch’ Hypothesis: Differences in College Graduation Rates by Institutional Selectivity, 78 SOC. EDUC. 294, 309 (2005) (rebutting the ‘mismatch’ hypothesis by finding that minorities’ likelihood of graduation increased as selectivity of institution attended rose); Tatiana Melguizo, Quality Matters: Assessing the Impact of Attending More Selective Institutions on College Completion Rates of Minorities, 49 RES. HIGHER EDUC. 214, 217 (2008) (finding that minority students who were admitted to highly selective institutions under affirmative action policies were more likely to graduate). 

“Notably, one study found that selectivity was an important factor with a statistically significant effect on African American graduation rates. Mario L. Small & Christopher Winship, Black Students’ Graduation from Elite Colleges: Institutional Characteristics and Between-Institution Differences, 36 SOC. SCI. RES. 1257, 1272 (2007). Not only did it increase the probability of graduation for African American students, it also helped African American students more than their white counterparts.”  

Scalia ignored an abundance of evidence that proves African Americans have successfully competed at the nation’s elite universities. He graduated from Harvard Law School in 1960 after completing his undergraduate study at Georgetown University in Washington, D.C. 

W.E. B. DuBois, one of the nation’s most distinguished scholars, earned his doctorate from Harvard University in 1895. That same year, William Monroe Trotter, the future crusading editor of the Boston Guardian, was awarded a Phi Beta Kappa key while earning his Bachelor’s degree magna cum laude from Harvard. They were proving they didn’t need to go to a “lesser” school more than a half-century before Scalia arrived in Cambridge, Mass. to enroll in law school. 

More recently, both the president and the first lady, earned degrees from Harvard Law School after earning undergraduate degrees at Ivy League universities. 

Congressman John Lewis (D-Ga.) described Scalia’s comments as troubling. 

“I was shocked and amazed by Justice Antonin Scalia’s comments in the Fisher v. University of Texas case yesterday.  His suggestion that African Americans would fare better at schools that are ‘less advanced’ or on a ‘slow-track’ remind me of the kind of prejudice that led to separate and unequal school systems – a policy the Supreme Court declared unconstitutional decades ago,” Lewis said. 

“Justice Scalia is supposed to be very well read, but he seems to have neglected study in African American history.  Is he aware that the current head of the Hayden Planetarium in New York City, the noted astrophysicist Neil de Grasse Tyson, graduated from the University of Texas in 1983, before affirmative action was struck down? 

“Does he know the story of Henry Sampson, the nuclear engineer, whose invention of the gamma-electric cell made the cell phone possible?  He graduated from the University of Illinois in 1965 when affirmative action was likely in place.  Dr. Charles Drew, the founder of the modern-day blood bank, attended Amherst on a football scholarship in the 1930s, and his medical innovations helped saved the lives of front line soldiers in World War II and are still saving lives today.  

“These are only three of a host of examples which prove African Americans can not only compete in the best schools in the nation, even in applied sciences, but they can excel and even surpass some of their classmates and colleagues, if given a fair opportunity.”