News Justice Scalia's Remarks Ignite Racial Controversy

During oral argument yesterday in Fisher v. University of Texas, comments made by U.S. Supreme Court Justice, Antonin Scalia, ignited controversy and debate about whether they contained racist overtones. The case, originally filed in 2008, involves allegations of racial discrimination resulting from the school's affirmative action program. Petitioner Fisher alleged that the university's consideration of race and ethnicity as factors in decisions on admission violated her Fourteenth Amendment right to equal protection under the law.

Justice Scalia's Comments During Oral Argument

During oral argument on the briefs presented to the Supreme Court, Justice Scalia addressed Gregory Garre, attorney for the university. Garre was defending the school's policy of using race as one of a number of factors to determine the suitability of a applicant for admission. The University of Texas represented that it took a holistic approach towards admission, which included taking into account the socioeconomic background and life hardships experienced by a select number of applicants.

In referring to amicus briefs filed with the court, Scalia stated the following which is the substance of a brewing controversy:

"There are those who contend that it does not benefit African Americans 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 slower-track school where they do well. One of the briefs pointed out that 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 being pushed ahead in classes that are too fast for them."​

So what do these comments actually mean taken in context? Is Scalia implying that black persons are not as smart as their white counterparts and belong in less-advanced, slower-track schools? Or is he referring to briefs arguing against affirmative action which insist that students will thrive when their pace of learning is more closely suited to their abilities?

The Mismatch Theory and Affirmative Action

US-Supreme-Court-Courthouse.jpgYesterday's home page headline at the Huffington Post blared "Scalia: Some Schools 'Too Fast' for Black Students." It linked to an article titled "Justice Scalia Thinks Black Students Belong In 'Slower-Track' Schools" and questioning "do black students matter to Justice Antonin Scalia, authored by the HuffPost's legal affairs reporter. Another interpretation of the comments at Mother Jones took a similar approach, proclaiming "Justice Scalia Suggests Blacks Belong at "Slower" Colleges."

A Los Angeles Times reporter took a markedly different stance, in spite of being a supporter of affirmative action. In providing more of the backstory of the case, reporter Michael McGough reasoned that Scalia wasn't exuding racist overtones in referring to a well known "mismatch theory." The book "Mismatch" reasons that when students are admitted to schools where their capabilities aren't properly matched, they receive lower grades and fare more poorly than they would at lower caliber schools where they could excel. Richard H. Sander, a UCLA law professor and one of the co-authors of the book, filed an amicus brief with the court which stated:

"In "competition mismatch", students receiving large preferences are at a competitive disadvantage, tend to receive lower grades, and become academically discouraged, which can lead to switching to a less competitive field of study or dropping out of school. A common example of "competition mismatch" occurs in the sciences at selective schools.19 Students with an interest in science who are admitted to a very competitive school via a large preference tend to drop out of the sciences at a much higher rate than do otherwise similar students who attend somewhat less competitive programs. Competition mismatch appears to be a major factor in the low rate at which African-American students become scientists, despite high levels of interest in the sciences."​

Scalia's comments appear to refer to what is allegedly not in dispute - that black applicants to universities typically have lower academic scores than their white classmates. What is in dispute is the level to which socioeconomic history and hardships may have unfairly and negatively impacted the applicants and their grades. The approach opposing the mismatch theory accepts that minority students may not score as well as they could at a lesser university. However the benefits of obtaining a degree at a highly competitive and respected institution outweighs the detriments. And if it were not remedied by affirmative action, this trend would get worse and the percentages of minority students at schools of higher learning would decline.

Will Affirmative Action Programs Come to an End?

As times have changed significantly since affirmative action was introduced over 50 years ago, there has been increasing public debate as to whether it is needed in the modern era. A decision in this case by the Supreme Court could determine whether such programs will remain lawful or come to an end.
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Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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