What Impact Will Justice Scalia’s Comments Have on Affirmative Action?

Supreme Court

Supreme Court

The New York Times and other observers believe a Texas affirmative action plan “seemed to be in trouble at the Supreme Court on Wednesday.” They noted, “By the end of an unusually long and tense argument, a majority of the justices appeared unpersuaded that the plan was constitutional.”

Moreover, “A ruling against the university could imperil affirmative action at colleges and universities around the nation.”

But there is an X-factor here and that is the comments by Justice Antonin Scalia, which, as the Times described, “drew muted gasps in the courtroom” and went viral on Wednesday outside the courtroom.

In response to a point, “Diversity plummeted, especially among African-Americans Diversity plummeted at selective institutions in California, Berkeley, and UCLA, after Prop 209. And that is exactly what’s taking place today at the University of Michigan,” Justice Scalia made one of his defining comments.

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 less, a slower-track school where they do well.”

He continued, “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 said, “I’m just not impressed by the fact that the University of Texas may have fewer. 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,” he added.

The Times writes, “It remains conceivable that the court could avoid ruling on the question for a second time. Justice Anthony M. Kennedy, who almost certainly holds the crucial vote and has never voted to uphold an affirmative action plan, spent almost all of his time exploring whether the university should be allowed to submit more evidence to justify its use of race in accepting students.”

But Justice Scalia’s ill-conceived comments could throw a monkey-wrench in the calculations and prognostications.

Gregory Garre, attorney for the University of Texas, fought back, arguing that now is not the time to “roll back student body diversity in America.”

“Frankly,” Mr. Garre said, “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.” Moreover, given the sensitivities of racial issues, it may be Justice Scalia who is in hot water.

This is a world where a basketball owner, Donald Sterling, in 2014 was stripped of ownership when he told his girlfriend in a conversation caught on tape, “You can sleep with [black people]. You can bring them in, you can do whatever you want. The little I ask you is not to promote it on that … and not to bring them to my games.”

A Claremont McKenna College dean of students had to resign when she responded to an email to a Latina student saying she would work to serve those who “don’t fit our CMC mold.”

That resignation came just days after student protests at the University of Missouri led to the president and chancellor resigning.

A Supreme Court justice is clearly far more insulated from public pressure than a basketball owner or college administrators, but the implications of Justice Scalia’s comments go much deeper and are therefore far more troublesome.

Fortune magazine notes, “(Scalia) was referring to the so-called “mismatch” theory, which has been around since the 1960s and suggests that affirmative action can actually work against the students it’s supposed to benefit. Because the practice may place such students in colleges where their skills fall below the median level of ability, they end up struggling academically, which ultimately harms them in the long-term.”

Whether the theory is true or not is subject to debate, with studies demonstrating both sides of the equation.

Fortune notes, “A working paper by Duke University economists published by the National Bureau of Economic Research in November 2012 found that California’s ban of affirmative action in 1996 led to improved ‘fit’ between minority students and colleges in the state’s public college system, which resulted in improved graduation rates. Meanwhile, a 2009 book by William Bowen, Michael McPherson, and Matthew Chingos found that students are most likely to graduate by attending the most selective school that would admit them. That finding was consistent without regard to students’ pre-college preparation, race, or socioeconomic status.”

To me, it’s a strange argument that students would do better going to a second-tier institution as opposed to an elite school. For one thing, the chief advantage of going to an elite school is not necessarily that the core course work is more difficult, but rather than you get exposed to top researchers in the field and make strong connections.

The Fortune article closes with a note to this effect, “The most powerful case may be made just by looking at the bench where Scalia made his controversial remarks on Wednesday. Just two of the nine justices are minorities and all nine attended either Harvard or Yale.”

It will be interesting to see if there is any fallout here. In these times of heightened racial sensitivity, will a Supreme Court justice remain immune to reactions to articulating what a New York Times editorial called an “offensive premise”?

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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    1. wdf1

      DP:  time for scalia to go.

      The Borowitz Report, New Yorker Magazine, 12/10/2015:  
      Study: Scalia Better Off in “Less Advanced” Court

      WASHINGTON —A new study conducted by legal scholars indicates that Justice Antonin Scalia would fare better if he served as a judge at a court that was “less advanced” than the United States Supreme Court.

      According to the study, Scalia’s struggles to perform his duties in a competent fashion stem from his being inappropriately placed on a court that is “too demanding” for a person of his limited abilities.

      “Forcing Justice Scalia to weigh in on complex legal issues that he lacks the background or aptitude to comprehend is, at the end of the day, cruel,” the study said.

      The legal scholars theorized that Scalia would be more likely to thrive in a “lesser court where he does not feel that he is being pushed to hear cases that are too challenging for him.”

  1. Anon

    I believe Scalia’s comments are being taken out of context.  What I believe he meant (or at least this is now I interpreted what he was saying based on my own experiences) was that forcing diversity when students may not be prepared is not helpful to the student.  If two students are equally qualified, and one is an ethic minority, it may make perfect sense to use ethnicity as a factor in admissions.  If two students are not equally qualified, and the lesser qualified student is an ethnic minority, it may not be doing that student any favors to admit him/her to college if s/he does not have the necessary qualifications to succeed.  I have seen this happen.

    1. Barack Palin

      Great points Anon.  Liberals always want to tell us that students of color have a harder time getting into college because of bad schools where they don’t learn as much and their low income families because they can’t afford tutors and others aides.  Yet when Scalia points out just what liberals have been harping about and that they might do better in a “slower track school” all of a sudden liberals want to cry racism.  Scalia is just pointing to the same problem that liberals often use as an excuse for affirmative action.

    2. Sam

      I knew someone that was admitted to UC Davis in a scientific major. She was from an underrepresented segment of the population and the first one in her family to go to college. They provided her with tutors and extra services to help her succeed. Even with the extra help she was unable to pass her classes and dropped out of school. I always thought it was strange that people thought that they were helping her by having her take biology with a bunch of pre-med valedictorians from college prep private schools. Obviously this is just one example and does not constitute even the norm, but I can see the basis for Scalia’s comments.

      1. Miwok

        UC has been documenting this for years, but not the reasons. They decry the fact the place is getting crowded because students are taking more than four years to get through their little pressure cooker.

        Culture shock and racism aside, however, some people learn at different paces than others. Just as social skills come at different ages, so does the ability to absorb information.

  2. Frankly

    I feel so sorry for our elite social justice liberals.  Their obsession with assessments of fairness and equality overwhelms their thinking processor and sets them up to be the big hypocrites.

    They demand legislated forced inclusion of less academically prepared minorities into universities while they also demand public school academic segregation for their little darlings (self-contained GATE/AIM).

    Obviously they don’t worry so much about the impact of filling the colleges with a greater number of less-academically-prepared students because having already mega-tutored and academically-segregated their kids to prep them for the higher-end colleges, they know their kids will have the stuff they need to succeed.  And also, bringing in more struggling students into the colleges will help these lucky cognitively-advanced kids seem so much smarter by comparison.

    It is interesting too how elite social justice liberals tend to support women-only colleges.  And apparently they support “safe spaces” segregation too.   Building on this, since it seems to be so supported by the elite social justice liberal crowd, I would suggest we keep moving in that direction, but with a twist.

    Instead of making a racial thing or gender thing… or any other “thing” that social justice liberals like to use for their divide and conquer political strategy, we need to make it a cognitive-preparation-class thing.

    Here is how that would work…

    Segregate into colleges that serve the lower cognitive-prepared students, and colleges suited for the higher-cognitive-prepared student.

    But since a college serving the lower cognitively-prepared students will obviously be fraught with lower academic achievement from a student body less-prepared, I suggest that we funnel more funding to those colleges to pay for an extra year of instruction.  That is the college-prep year.   And the funding for that should come from an IQ /GPA tax.  Those gifted students and their parents should have a premium attached to their tuition that is funneled to these lower schools so that they can catch-up the lower-cognitively-prepared students and help them achieve parity and equality with their peers lucky in their academic preparation and gifts.

    Then over time, with more less-prepared students getting the boost they need to better equal their more fortunate in life peers, homogamy will cause a shrinking gap and less need for the college-prep year.   And we will start to see a shrinking of the economic gaps that seem to cause social justice liberals so much grief.

    1. wdf1

      It’s hard for me to see how the SCOTUS can come up with any lasting decision on this issue through this case, either way (in Fischer’s favor or against).  I think it’s an illusion at this point to think that we can appropriately and absolutely measure all students in a fair way to determine who should get into college and who shouldn’t.  At some level it will be subjective, and it’s probably more subjective than folks realize.  Because of that, I tend to defer to public colleges and universities to offer a way to demonstrate that they are fairly serving an appropriate cross section of resident taxpaying public.

      Some of my thinking on this came from interacting with an admissions counselor for Claremont McKenna College. I was surprised by how dismissive he was on SAT scores and high GPA’s as deciding factors to determine admissions to their college.

  3. Tia Will

    It would seem to me that Scalia has not fully appreciated the typical argument made by some conservatives about the harm done by low expectations ( sorry Frankly that I did not get the expression exactly write). If we do not hold high expectations for those who may not be admitted to  elite universities from non -elite high schools, are we not consigning them to less opportunities in the post college world ? It would seem that Scalia is willing to consign a specific group of students to lifetimes of lower economic opportunity based on their race. Please note, it was his comment about this applying to “blacks” not mine.

    1. Frankly

      Tia, it is the “soft bigotry of low expectations”.  One of many fantastic lines from President George W. Bush.

      Like it or not branding happens.

      When that college graduate interviews for the job, was he an Affirmative Action admission and graduate?   Or, did he earn his spot and degree competing on the curve?

      Affirmative Action brands the groups that get to exploit it as being less capable because they have been corrupted by the soft bigotry of low expectations.

      I support changes to education, and even certain social services, that help lift up the less academically-fortunate; but not to dumb down requirements and expectations for any group.

      It is the old hand-up vs. hand-out difference.  The teach-to-fish vs. feed-a-fish difference.

      The feeling liberal sees struggle, sees current inequality… and immediately seeks to satiate the pull on the heart-strings with pseudo solutions that perpetuate the very problem they say they need to solve.

      The thinking conservative sees struggle and inequity… and considers the big picture and long term… and is willing to accept the immediate greater struggle and inequity in exchange for real solutions that actually fix the problems.

      There is human confidence and capability.  And there is a social and economic system that pretty effectively delivers greater reward to individuals as both increase.  Affirmative Action is dumbing down the  system so that those with less developed confidence and capability get a greater share of the available reward pool.  It attempts to set the bar lower.  However, there are much stronger forces continually raising the bar.   So it is a false solution.

      Everything we do to fix the gaps in economic outcomes should be focused on increasing individual confidence and competence.  There is absolutely zero proof that Affirmative Action does that, and copious proof that it causes many more problems.


      1. David Greenwald

        Soft bigotry came from Michael Gerson, GWB’s speech writer. The problem that you soon run into if you’re intellectually honest is what is “low expectations” after all I could define low expectations as Scalia’s notion that blacks need a slower track to be successful.

      2. Tia Will


        Affirmative Action brands the groups that get to exploit it as being less capable because they have been corrupted by the soft bigotry of low expectations.

        I know that you keep saying that, and yet as a member of our hiring team for ten years, I never once applied this standard to a black physician that I was considering hiring, as opposed to an Asian applicant, or a Hispanic applicant or to a Caucasian applicant. Just as I have consistently fought against hiring women, I insisted the the hiring be done of the best candidate holistically, not by picking apart how they got into the school that they were accepted to. And using this approach, the applicants have gotten stronger and stronger over time.

        The feeling liberal sees struggle, sees current inequality… and immediately seeks to satiate the pull on the heart-strings with pseudo solutions that perpetuate the very problem they say they need to solve.

        The thinking conservative sees struggle and inequity… and considers the big picture and long term… and is willing to accept the immediate greater struggle and inequity in exchange for real solutions that actually fix the problems.”

        OMG, ( forgive me hpierce)….but are you never going to give up on the stereotypes of “feeling liberal” and “thinking conservative”? Do you really not understand that we are all humans and subject to both emotional states and more contemplative times. Can you really be so entrenched in your own cloud of beliefs that you really feel that we are nothing but cookie cutter characters based on your definition of what goes on in liberal vs conservative minds ?


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