These #StayMadAbby Tweets Prove Scalia Wrong About Black Excellence on Campus

Particularly alarming was Justice Scalia asserting that African American students are better off at “less advanced” or “slower-track” schools. Fisher did not land in the top 10 percent of her high school class, so she is suing on the basis of the admissions program that admits the remainder of the university’s student body.

But the argument from Scalia, himself a staunch critic of it, seems to lean on the notion that affirmative action is, in fact, unfair to black students because some of them don’t perform as well academically at more advanced schools they earned admission to thanks to the policy.

“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”, the justice said, according to the Huffington Post. Maybe it ought to have fewer (black students)… 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.

With no clear decision apparent after Wednesday’s latest arguments, Kennedy hinted that he might be in favor of sending the case back for a third time to a lower court. “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”.

UT-Austin fills 75% of its classes with graduates in the top 10% of their high schools who get automatic admission.

The policy has its share of critics, however, who argue that it isn’t fair to white students. It was the second time the high court considered the issue of affirmative action in Texas public universities.

Several justices asked about the value of ordering more hearings in a case they’ve now heard twice. In a statement, the school’s president said, “We are hopeful the Supreme Court will reach the same conclusion as the lower courts and enable all of our students to receive the full educational benefits of diversity”. Law professor Richard Sander and journalist Stuart Taylor have argued that affirmative action creates substantial “mismatch” that hurts racial minorities in the long run.

Chief Justice John Roberts and other conservative justices came out against the affirmative action policy, but none with quite as much vitriol as Antonin Scalia, who wondered if the minority students now accepted into UT deserve to be there.

The controversial comments, which come from a Supreme Court Justice known for his fiery language, were made during a hearing for the Fisher v. University of Texas case.

Since 1978, the Supreme Court has recognized that promoting diversity on college and university campuses allows universities to give limited consideration to an applicant’s race. The program has largely increased racial diversity in Texas colleges.

Wednesday’s arguments were heard by eight of the nine justices. Writing for the court, Kennedy said universities must show that “available, workable race-neutral alternatives do not suffice”.