A Supreme Court justice caused consternation at a hearing yesterday on a university’s affirmative action policies when he raised the possibility that some black students might do better at a “slower-track school”.
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The country’s African American scientists went to “lesser schools”, he argued, because in those places “they do not feel that they’re being pushed ahead in classes that are too fast for them”. “Maybe it ought to have fewer”. Our source indicated that Justice Scalia distinguished “really competent blacks” as those capable of attending the most competitive schools and excelling there.
It was the second time the high court considered the issue of affirmative action in Texas public universities.
Scalia and other justices asked lawyers for the university several questions Wednesday in a session that lasted 95 minutes.
That system, while race-neutral on the surface, ensures a significant number of minorities because it guarantees slots to students at predominantly Hispanic and black schools. So a generous interpretation of Roberts’s question is whether the presence of minority students still makes a difference to everyone, since that’s the test an affirmative action program has to meet. The appeals court ruled in favor of UT, again, and now the case is back with the Supreme Court.
Ms Fisher’s legal team says Top 10 is effective in bringing in minority students, without considering race. But the court could go further, saying the time has come to no longer allow colleges to consider race at all when building their student bodies.
University of Texas-Austin President Gregory Fenves said after the hearing that “diversity fosters an understanding of one another, of students, and a respect for their differences”. (Justice Elena Kagan had recused herself the case, having participated in it in her previous career as a lawyer for the government.) But some of the following arguments put forth by their conservative counterparts suggest the practice could still be very much in jeopardy. Scalia is a known critic of affirmative action and argues it pushes black students into universities they’re not prepared for. He said that “there are those” who claim that African Americans do not benefit from getting admitted in top universities like the University of Texas because they do not perform well in such institutions.
The proceedings won’t change anything for Fisher, who ended up attending Louisiana State University and graduated from college in 2012, but the justices’ renewed interest in her case appeared to be a sign that the court’s conservative majority is poised to cut back, or even end, affirmative action in higher education.
“Secondly, how is it improving diversity in your student body?”
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The case attracting all the attention is Fisher v. University of Texas at Austin. Alito expressed doubt over the suggestion that minority students admitted under the top 10 percent plan were not at the same level as those accepted under the standard review program, calling it “terrible stereotyping”.
