The left have rent their clothes over comments made by Justice Scalia during oral arguments in the case of Fisher v. Texas. (Streiff has already given a good primer on the overall issue and commented on Justice Ginsburg’s latent racism.) During the arguments Justice Scalia said, to paraphrase, that blacks were harmed, or at least did not positively benefit, by attending colleges they were not prepared for. He also suggested that perhaps they would be better off at “slower track schools”. The left is going crazy. How dare this white man from the Ivy League suggest that a person cannot pass muster in a prestigious university based on their race! Unfortunately for the left, Justice Scalia did not suggest that at all.
TL;DR The simple conclusion is that Justice Scalia’s comments are nothing new in the history of affirmative action and the Supreme Court. Justice Thomas has asserted as much multiple times and backed it up with published studies. However, Justice Thomas is ignored because the left hates him for being a black conservative. The fact that the left is so upset about it now shows their lack of knowledge thus exposing their lack of standing to comment intelligently upon the constitutionality of affirmative action in public education.
First, there is context. Nobody with a brain argues are that being black, in and of itself, is harmful. People do, however, argue that the effects of being black are harmful such as disproportionate levels of education and income as well as family struggles. This is what Justice Scalia was referring to. He did not say that being black meant these students could not make it at the University of Texas-Austin but that the effects of their race – the poorer level of education found in predominantly black schools – has not prepared them well enough. Is that an absurd argument? No, it is actually what the left argues all the time when making power grabs in primary public education – it is a demonstrable fact.
Secondly, Justice Scalia is not advancing his own view per se on this matter. In fact, it is Justice Thomas who has repeatedly suggested, in published opinions, that sending minority students to universities and law schools for which they are not adequately prepared for is harmful. If it wasn’t for the fact that Justice Thomas is notoriously silent at oral arguments he would undoubtedly be the one asking the very question Scalia is getting criticized for. Which begs the question “If a black justice, himself a beneficiary of affirmative action, thinks this is harmful should we not at least listen?”
In the case of Grutter v. Bollinger, dealing with affirmative action at the University of Michigan Law School, Justice Thomas writes
“While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to less “elite” law schools for which they were better prepared.”
“… no social science has disproved the notion that this discrimination ‘engenders attitudes of superiority or, alternatively, provokes resentment among those who believe they have been wronged by the government’s use of race….’ [t]hese programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.”
In his dissent on the previous hearing for Fisher v. Texas, Justice Thomas scathingly attacked the “deafening” lack of evidence that would suggest that minorities generally even learn more at an elite institution, or to counter the established fact that beneficiaries of affirmative action usually end up in the lower quarter of their graduating class.
So will the left listen to Justice Thomas and ask itself the tough questions he raises? Of course not. The left has renounced Thomas as a beacon for black achievement. Whenever he is brought up they stoop to a virulently racist attack on Thomas’ person and character suggesting that he is the modern day equivalent of the head house slave; Samuel L. Jackson suggests it, prominent leftists have said it, Democratic politicians have likened him to it and I have heard it from highly educated people in my own life. There is simply no getting around the fact that when it comes to Justice Thomas democrats are racist. They cannot stand that a successful black man in the public eye would have the temerity to say that liberals are wrong and conservatives are right. See, they believe black Americans are indebted to the Democratic Party and the only proper response is to support it unequivocally – no free thinking for them. (Anyone taken a history class? Does that ring a bell?)
Suffice to say, the Constitution does not recognize any race amongst its citizenry and prefers no class of people. That’s basic. The left doesn’t like the Constitution as written though so at every opportunity it looks to judges to “rewrite” it for them. Literally, the liberal wing of SCOTUS acknowledged that affirmative action will be unconstitutional in 25 years but the Constitution means now what it meant then and will mean tomorrow. Their honesty would be like a breath of fresh air if it wasn’t for the fact that they’re contravening the Constitution.