Affirmative Action Debate Brews in High Court

Justice Scalia made the controversial comments during an oral argument on affirmative action.

[Photo by Mark Wilson / Getty Images]The lawyer representing the University of Texas argued that the removal of race as a factor in college admissions would lead to a diversity problem. If you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they – they fare better.

He said some African-Americans may feel more comfortable going to a smaller school, such as an all-black college.

“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 have them go to a less-advanced school, a less – a slower-track school where they do well”, he said.

Scalia is likely referring to a “slower track” because opponents of race conscious affirmative action policies often say that students of color are admitted into selective colleges they shouldn’t be attending – claiming they are “mismatched” and will eventually falter academically.

While Scalia’s words angered many who read about them, he was actually making an “overmatching” argument that has been used by many critics of affirmative action (and rejected by many supporters of affirmative action).

Congressional Black Caucus Chairman G.K. Butterfield (D-NC), a former member of the Supreme Court of North Carolina, responded to Scalia’s comments yesterday and called for his recusal from the Fisher case in lieu of them. The court’s only Hispanic, Justice Sonia Sotomayor, defended the Texas program and, after listing university data supporting its use, asked Fisher’s attorney, “What more do they need”. “The reason for adopting affirmative action in the first place”, he said, “was because there are people who have been severely disadvantaged through discrimination and lack of wealth, and they should be given a benefit in admission”.

In Texas, students in roughly the top 10 percent of their high school graduating classes are automatically admitted to the University of Texas. “I’m just not impressed by the fact that the University of Texas may have fewer [black students]”, Scalia added.

In order for a Supreme Court justice to be kicked off the bench, he or she must be impeached by the House and convicted by the Senate – a move that has never happened in US history.

Fisher argues the 14th Amendment’s the Equal Protection Clause prohibits the school from considering race in any manner as part of the admissions process.

Scalia was apparently referencing a brief filed by Sander.

Alito added that the top-10 program helped underprivileged students in a way the race-conscious admissions did not.