Justice Scalia Suggests Blacks Belong at “Slower” Colleges

In oral arguments today, U.S. Supreme Court Justice Antonin Scalia said that black scientists would benefit from going to less challenging schools than they do under affirmative action.

Justice Scalia spoke during the case of Fisher v. The University of Texas at Austin that sought to establish whether the University of Texas should uphold race-conscious admissions.

The challenger in the case, Abigail Fisher, is a white student who was denied admission into the University and has lobbied a case against the school, claiming that their policy of pursuing a percentage of race-based admissions is unconstitutional. “Maybe it ought to have fewer”, Scalia continued, emphasis ours. Civil rights activist Al Sharpton, speaking to Politico after the hearing, said he “felt very concerned given the line of questioning and the tone when I heard Judge Scalia suggest that maybe blacks do better at schools” that are less advanced or rigorous.

It was the court’s second look at the admissions program at the University of Texas at Austin.

Scalia and other justices asked lawyers for the university several questions Wednesday in a session that lasted 95 minutes.

[Affirmative action is] created to ensure that the pipeline for leadership and opportunity remains open for minority students. Thomas wrote that blacks and Hispanics admitted under the university’s program that considers race among other characteristics are “far less prepared than their white and Asian classmates”.

Affirmative action refers to policies under which minorities historically subject to discrimination are given certain preferences in order to enhance the racial diversity of a university’s student population.

The brief, citing a 1996 study, said historically black colleges produced 40 percent of the black students graduating with natural science degrees.

By the end of the unusually long and tense argument, Justice Kennedy indicated that the Supreme Court might have all the evidence needed to decide the case.

Justice Elena Kagan has recused herself on the case because she worked on it while in the Justice Department before joining the Supreme Court.

Whether affirmative action is actually eliminated, though, will depend less on Roberts and Scalia and more on Supreme Court swing justice Anthony Kennedy.

This is not a person talking about a subset of blacks with a particular kind of educational background; taking his words at face value, this is a person asserting that African-Americans as a whole belong in “lesser schools” that are not “too fast for them”.

There is the real danger of a ruling that will in effect say race can not even be one of many factors considered in admission to American colleges and universities. The state’s Top Ten Percent Law, enacted in 1997 in response to a court decision, requires the school to admit three-quarters of its freshman class each year exclusively on the basis of high school class rank. That leaves the court with only eight participating justices, potentially complicating the effort to put together a five-vote majority.

The U.S. Fifth Circuit Court of Appeals has twice agreed with the University of Texas policy, finding that that program makes limited use of race, and it conforms to the university’s intent to promote a racially and culturally diverse student body.