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Monday, October 16, 2017

During oral arguments Wednesday at the Supreme Court in a key college affirmative action case, conservative stalwart Justice Antonin Scalia made a shocking case for a modern American jurist: He suggested that African-American students might be better off, and able to attain more achievement, by going to different schools.

“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,” Scalia told Gregory Garre, attorney for the university in this legal challenge, Fisher v. University of Texas at Austin. The case is a rearguing on further appeal of a prior Supreme Court decision from two years ago, involving the state of Texas’ efforts to promote diversity by guaranteeing admissions to all students who perform in the top ranks of their respective high schools.

Scalia further elucidated, however, on the experience of African-Americans in higher education: “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 — that they’re being pushed ahead in — in classes that are too — too fast for them.”

Scalia arrived at this view of the case: “I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer.”

He even added that having a greater number of minority students at the University of Texas was bad for those lesser schools, too — since they, in turn, don’t get more talented admissions: “You know, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less. And I don’t think stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”

Here is the exchange, from the Supreme Court’s official transcript (from page 67 of the linked transcript):

JUSTICE SCALIA: 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.

MR. GARRE: So this Court—

JUSTICE SCALIA: 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.

MR. GARRE: This Court—

JUSTICE SCALIA: 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. I just don’t think—

MR. GARRE: This Court heard and rejected that argument, with respect, Justice Scalia, in the Grutter case, a case that our opponents have and 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.

Photo via Wikimedia Commons.

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