Scalia’s comments came during arguments in Fisher v. University of Texas, a case over whether the university’s use of race in a sliver of its admissions decisions is constitutional. And, obviously, there is the point that affirmative action lends an assistance – you know, to an under-represented point of society that has systemically and historically been under-represented.
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When a university lawyer spoke of the importance of classroom diversity, Roberts asked, “What unique perspective does a minority student bring to a physics class?” Justice Clarence Thomas, an affirmative action opponent who has said he felt stigmatized by racial preferences, was customarily silent during the arguments. The rest of the world is building graduate programs to compete with ours, and as this happens we will lose the ability to recruit and retain other countries’ brightest minds. In a barrage of questions from Justices Ruth Bader Ginsburg and Sonia Sotomayor, though, he could not quite explain why.
The reaction to Scalia’s remarks was swift and severe. Fisher went on to graduate from Louisiana State University, and her case has been to the Supreme Court once before in 2012. Similarly, Yahoo claimed that “Scalia suggested that black students benefit from a “slower track” at less prestigious schools”, as if this suggestion extended to black students whose credentials fit top schools. He implied affirmative action puts minority students in elite universities that are too challenging for them.
Scalia was referring to a brief filed in the case that discussed an academic proposition called “mismatch theory”.
After his initial comment, Scalia said that “maybe” the university “ought to have fewer” blacks. “It’s a throwback to a time that America left behind half a century ago”.
Wednesday’s arguments were about whether the University of Texas has compelling reasons to consider race among other factors when it evaluates applicants for about a quarter of its freshman class.
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”.
The dispute arose over a supplemental program that now accounts for the remaining 25 percent of admissions.
Fisher, a white Texas resident, sued UT-Austin after she was denied admission, arguing that the school discriminated against her on the basis of her race.
Mother Jones also adopted this line and sniffed, “after [Scalia’s comment], Court watchers will really be looking forward to his opinion in the case”.
After sitting through the hearing, Thompson wasn’t sure how the justices will rule.
Yet, in fact, the university, seeking to buy more time, did ask the appeals court for a remand – and was denied.
In the wake of the 2003 decision, the University of Texas adopted the “holistic review” policy that is at issue now. “College entry is often more difficult for white students, even if they have the grades to show that they worked as hard as everyone else, while a student of lesser merit of a minority can gain entry”.
Garre, formerly a top courtroom lawyer for President George W. Bush, argued that the University of Texas should have leeway to admit qualified black and Latino students who would add diversity to the campus in Austin.
Earnest pointed to Obama’s own education – he graduated from Columbia University and Harvard Law School – as an example that refutes Scalia.
Out of 170 bachelor’s degrees in physics, only 27 went to women, 21 went to Hispanic students and two went to black students.
Meanwhile, the attorney for Fisher said the policy should be struck down because it was not needed to achieve diversity. “Will every school have to use the 10% plan?”
At the oral argument Wednesday, Bert Rein, the lawyer for Abigail Fisher, challenged that claim, saying there was no evidence that the Top Ten Percent law did not provide a sufficiently diverse, quality group of students for UT.
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The outcome nearly certainly turns on Kennedy’s vote.
