Justice Scalia Causes An Uproar

On Wednesday, the Supreme Court heard oral argument in the case of Fisher vs. University of Texas at Austin.  This is the second time in three years this case was before the Court.  In a previous decision, they ruled sort of in favor of Fisher.  While noting the importance of diversity in higher education, they also sent the case back to the Fifth Circuit for further review with renewed guidelines.  Those guidelines basically required a strict scrutiny test for resolving this case.  Nevertheless, the lower court again sided with the University thus resulting in this most recent case.

On the practical level, this is about Fisher’s $100 application fee.  She has already received a degree from LSU in neighboring Louisiana.  This is a classic “It is the principle of the thing” type of case.  But, this is not what this article is about.  Instead it is about comments made by Justice Scalia during that argument.  The alleged “racist” comments come on page 67 of the oral argument transcript as follows:

 JUSTICE SCALIA:  There are ­­ there are 11 those who contend that it does not benefit 12 African­Americans to ­­ to get them into the University 13 of Texas where they do not do well, as opposed to having 14 them go to a less­advanced school, a less ­­ a 15 slower­track school where they do well.  One of ­­ one 16 of the briefs pointed out that ­­ that most of the ­­ 17 most of the black scientists in this country don’t come 18 from schools like the University of Texas. 19  MR. GARRE:  So this Court ­­ 20  JUSTICE SCALIA:  They come from lesser 21 schools where they do not feel that they’re ­­ that 22 they’re being pushed ahead in ­­ in classes that are 23 too ­­ too fast for them.

This is nothing more than a restating of what is known as the mismatch theory.  It has brought strong rebuke from those on the Left.  Some are even calling for the removal of Scalia from the Supreme Court claiming that he is the face of “institutional systemic racism.”  At least four times on the floor of the Senate, [mc_name name=’Sen. Harry Reid (D-NV)’ chamber=’senate’ mcid=’R000146′ ] referred to the comments or Scalia as racist.  Pelosi chimed in with similar comments.  [mc_name name=’Rep. John Lewis (D-GA)’ chamber=’house’ mcid=’L000287′ ], a civil rights leader, likened Scalia to being an advocate of separate, but equal mindset.  G.K. Butterfield, head of the Congressional Black Caucus said Scalia’s comments were “…disgusting, inaccurate, and insulting…”

The Left blogosphere is rife with commentary comparing Scalia to George Wallace and Lester Maddox in their segregationist heyday.  They, in true fashion, then turn their vitriol on Clarence Thomas whom they also call an “Uncle Tom,” but that is OK in their book because, after all, the Left can’t be “racist.”

Now, juxtapose Scalia’s comments against the following from The Atlantic, hardly a conservative screed:

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.  (Source: http://www.theatlantic.com/national/archive/2012/10/the-painful-truth-about-affirmative-action/263122/)

I can also refer readers- Left and Right- to any number of articles on line.  The following two will suffice since they come from such “conservative” bastions as The New York Times  and Slate.  They are: http://www.nytimes.com/2013/03/17/opinion/sunday/does-affirmative-action-do-what-it-should.html?_r=0 and http://www.slate.com/articles/life/history/features/2014/the_liberal_failure_on_race/affirmative_action_it_s_time_for_liberals_to_admit_it_isn_t_working.htm.

In both of the above cited articles, the authors argue that affirmative action has not had its intended effects and that it has actually hurt minority students.  They enter certain universities in the interest of “diversity” to “get a leg up.”  Unfortunately, that “leg up” is cut off at the knees.  They find themselves, for whatever reason, unable to withstand the rigors of higher education at the more elite universities.  The result is that the elite universities either have to “dumb it down” which, in my opinion, is not what “higher education” is about, or they have to provide remedial courses.  The third option is the most often taken- the minority student perseveres and finds themselves with a worthless degree and huge debt after 4-8 years of “higher” education.

Mismatch theory does not deny that there are qualified minority students.  Many overcome the disadvantages of a bad earlier schooling experience, or poverty, or a host of other factors.  It is these students that any affirmative action program should be designed to seek out.

It is much easier to take thirteen lines out of a 167-page oral argument transcript and brand Scalia a racist than it is to admit the truth.  Instead, “esteemed” leaders like Lewis, Butterfield, Reid and Pelosi are actually the worst type of racist- the ones who continue to do a disservice to the people they claim they are trying to help.  In the sacred name of diversity in higher education, they point fingers at others who, as illustrated, were simply restating a theory for which there is much justification.  Justices Scalia, Roberts and Alito- the three most skeptical of the university’s affirmative action program (we can also assume Thomas with Kennedy on the fence, as usual)- are the ones who see the truth while their detractors bury their heads in the sand after making inflammatory accusations.  Instead of removing Scalia from the Supreme Court, perhaps we should remove Pelosi and others from Congress.  It is they who are the true racists in the most practical sense of the word.