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