Supreme Court case reveals Scalia’s race problem

Education, Lisa Bloom, News, Politics

Our national discourse is packed with so many outlandish and offensive bigoted comments at the highest levels I sometimes have to check the calendar to be sure I’m in the twenty-first century. Leading GOP contender Ben Carson would not want a Muslim president. Republican frontrunner Donald Trump would ban all Muslims from entering the US, and has called Mexican immigrants rapists and criminals, blacks lazy, and mocked a reporter’s physical disability.

And now US Supreme Court Justice Antonin Scalia has suggested from the bench that African Americans should go to “less-advanced” “slower-track” schools rather than get a boost from affirmative action, and that perhaps prestigious universities should have fewer black students in their ranks.

The idea that blacks are intellectually inferior is a longstanding, deep seated racist myth that should be relegated to the dustbins of history, alongside Nazis measuring the craniums of Jews to “prove” their inferiority. That an educated justice on our highest court would promote such a repulsive idea is stomach-churning.

Affirmative action debate

Justice Scalia’s comments came during oral arguments in potentially its biggest civil rights case of the year, Fisher v. University of Texas, a case that challenges the University of Texas’ decision to allow consideration of race in a small number of its student admissions. Roughly 75 percent of the students at UT-Austin are admitted through its Top Ten Percent program, in which any student graduating within the top 10 percent of his or her class is guaranteed admission. The other 25 percent are admitted via a “holistic” process that takes race, and other factors, into account. Student Abigail Fisher, who was denied admission to the university in 2008, challenges the use of race in the holistic approach, and says that she was discriminated against on account of her race (white).

During the oral arguments, former US Solicitor General Greg Garre, representing the university, was explaining that the University of Texas has determined that if it excluded race as a factor, the remaining 25 percent would be almost entirely white. Scalia jumped in, questioning whether increasing the number of African Americans at the university was in their best interests. He said:

“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.”

He went on to say, “I’m just not impressed by the fact the University of Texas may have fewer [blacks]. Maybe it ought to have fewer. I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”

“Mismatch” theory as evidence

Scalia’s comments are based on the hotly disputed “mismatch” theory, based on the work of two academics from Stanford and UCLA (Richard Sander and Stuart Taylor) who claim that students of color admitted to schools with the help of affirmative action have lower academic credentials and struggle to thrive at schools with higher standards. These professors argue that affirmative action students opt for a less difficult major or decide to forgo further education because they are not comfortable in their learning environment, and had they enrolled in a less competitive school they may have achieved greater success in the long run.

Yale professors Ian Ayres and Columbia professor Richard Brooks submitted a friend of the court brief disputing these findings, based on their own data analysis. They found that striving alongside those who at first appear more capable productively encourages growth by affirmative action students.

In session, the university’s lawyer argued that the Court had already rejected the mismatch theory in a prior case, and that it was factually false. “If you look at the academic performance of holistic minority admits versus the top 10 percent admits,” Gregory Garre said in oral argument, “over time, they fare better.”

The hard work of equality

Of course, the real answer is to provide academic support to all struggling students to help them succeed. This should begin in elementary school and be a staple through college and graduate schools. Intelligence is malleable (“the harder I work the smarter I get”), and a student’s success depends on much more than brains: drive, perseverance, willingness to ask for and get help, and digging into the work.

A college degree is the best guarantee of a middle class or better life in America in the twenty-first century, and as children of color overwhelmingly attend subpar, inferior, segregated US schools, affirmative action remains vitally important to equalize our disturbingly unequal system of education.

Scalia’s comments flirt with the rankest kind of racism—that blacks are inferior and deserve to fail. My friend Dr. Tererai Trent, born into a dirt poor village in Zimbabwe, overcame being married off as a child, bearing three children before she was eighteen, being forced out of school because she was a girl, and a husband who beat her, to get her GED, Bachelor’s degree, Master’s degree, and Ph.D. She is a living testament to former President Bill Clinton’s observation that “Intelligence and effort are evenly distributed, but investment and opportunity are not.”

If we really mean it when we claim to be a country that believes in equality, it is our job to provide that opportunity by investing in students of color and those from disadvantaged backgrounds.

Perhaps Scalia, who clearly lacks insight and sensitivity to the plight of others required for a twenty-first century Supreme Court justice, would do better on a “less advanced” court, a “slower-track court” where he wouldn’t feel “pushed ahead” on issues that are far ahead of him.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.

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