My latest Verdict column discusses an issue that has been in the background in all of the Supreme Court's affirmative action cases in the last dozen or so years, and which resurfaced during last week's oral argument in Fisher v. UT-Austin (Fisher II): Whether to characterize the Texas Ten Percent Plan (TPP) as "race-neutral" or "race-based." UT admits most of its class under the TPP, but then supplements the class with students admitted under a program of "holistic" review that includes race as a factor.
Whether that use of race is narrowly tailored (and thus constitutional) depends in part on whether UT can achieve its goal of a diverse student body using just the TPP--but that is only a useful comparator if the TPP is itself race-neutral. As I explain in the column, most of the conservative Justices do not really have a good answer to the charge by Justice Ginsburg that--taking them at their own word regarding "color-blindness"--the TPP is race-based. However, I note how Justice Kennedy may be different. He has previously suggested that he thinks there is a difference between taking account of race for purposes of integration, so long as "race-conscious" measures are not "race-classificatory" ones.
Here I want to consider another issue that arose during the oral argument and its aftermath: whether Justice Scalia invoked racist stereotypes of African Americans, as some prominent Democrats charged, and as some Scalia defenders denied. To evaluate the charge, let's look at the key language. With ellipses used to denote brief efforts by UT attorney Greg Garre to interject, here is what Justice Scalia 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. One of the briefs pointed out that most of the 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. . . . I'm just not impressed by the fact 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 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.If Justice Scalia had just come up with the foregoing on his own, the charge of racism would be undeniable. But of course he did not completely make it up. Justice Scalia was asking Mr. Garre about an argument set forth in a brief (and also a book) by UCLA law professor Richard Sander and attorney/journalist Stuart Taylor, Jr. They argue that race-based affirmative action systematically “mismatches” minority students who would thrive at the schools that would admit them through race-blind processes by placing them in more competitive schools, where they struggle academically. Here is how Sander and Taylor describe the phenomenon in a 2012 article in The Atlantic:
The mismatch effect happens when a school extends to a student such a large admissions preference -- sometimes because of a student's athletic prowess or legacy connection to the school, but usually because of the student's race -- that the student finds himself in a class where he has weaker academic preparation than nearly all of his classmates. The student who would flourish at, say, Wake Forest or the University of Richmond, instead finds himself at Duke, where the professors are not teaching at a pace designed for him -- they are teaching to the "middle" of the class, introducing terms and concepts at a speed that is unnerving even to the best-prepared student.
The student who is underprepared relative to others in that class falls behind from the start and becomes increasingly lost as the professor and his classmates race ahead. His grades on his first exams or papers put him at the bottom of the class. Worse, the experience may well induce panic and self-doubt, making learning even harder.The mismatch thesis is highly controversial and contested. One of the most sophisticated statistical wizards in the legal academy--Stanford law professor Dan Ho--thinks Sander and Taylor are wrong. Sander thinks Ho is wrong, but then, Ho thinks Sander is wrong in thinking him wrong. Other leading sophisticated empirical scholars share Ho's doubts about the methodology underlying the empirical claims of Sander and Taylor. Sander in turn has his doubts about the doubts.
So it's quite possible that Sander and Taylor are just wrong. But even if so, that doesn't make it illegitimate, much less racist, for Justice Scalia to have asked Garre about their work. Garre could have pointed to the work of Ho and others casting doubt on the empirical claims. Or he could have said that even if Sander and Taylor are right--and that there is some of what they call mismatch--the benefits to African American students and to the educational experience of everyone at the university nonetheless outweigh any harms from mismatch. Yet because Garre, along with most casual observers of the exchange, apparently understood Justice Scalia to be saying something quite ugly--i.e., that African American students should have to make do with separate and unequal schools--he didn't address the mismatch thesis on the merits.
Was that Justice Scalia's fault? Partly, yes. Whereas Sander and Taylor are careful not to denigrate the somewhat less competitive schools where they think that mismatched students at the most elite schools would thrive, Justice Scalia describes these institutions as "less advanced," "slower track," and simply "lesser."
That is certainly elitism, but is it racism? I don't think so. Justice Scalia was, in my view, insufficiently attentive to the way in which his words would be understood. What he said could easily be misunderstood--and in fact was misunderstood--to mean that in general, African American students are unqualified to attend elite universities. In context, I think it clear that he meant only that, while there are African American students who have the academic preparation to thrive at elite universities, those universities don't stop at admitting these academically prepared students, but also admit students who lack adequate preparation.
That may or may not be true. In my experience teaching in universities for nearly a quarter century, there is only a weak (albeit positive) correlation between entering credentials and ultimate success. But again, Justice Scalia was entitled to ask whether the mismatch claim is true. And the question itself did not imply any sort of claim of inherent racial characteristics--as opposed to disparities in wealth, education, and experience--as the cause of the potential mismatch.
Accordingly, I score Justice Scalia's statements in the Fisher II argument elitist and racially insensitive, but not racist.
Postscript: I wrote the foregoing post over the weekend but delayed putting it up until now so that it would go out with the column. In the interim Geof Stone said more or less the same thing on HuffPo. Neither Geof nor I often come to Justice Scalia's defense, so the fact that we both do so in this instance suggests that we're onto something.