Journalists were quick this week to report that Justice Antonin Scalia had suggested African-Americans are too slow to compete at leading universities, but he didn’t quite say this.
Mother Jones reported, “Justice Scalia Suggests Blacks Belong at ‘Slower’ Colleges.”
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“Justice Scalia’s Racially Charged Remarks Stoke the Affirmative Action Debate,” read a Fortune headline.
“Justice Scalia suggests African-American students belong at less elite colleges,” said USA Today.
These and other headlines appear to be misleading, however, as Scalia himself didn’t suggest any such thing.
His reportedly “racist” comments were made when he was referencing an amicus brief filed by two members of the U.S. Civil Rights Commission, which argued that affirmation action negatively affects the people it’s supposed to help.
Scalia said as he referred to the brief, “There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school where they do well.”
“One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas,” he added. “They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”
The conservative justice’s remarks came Wednesday during an untelevised hearing of oral arguments for the case of Fisher v. University of Texas at Austin, which deals with the Texas university’s affirmative action admissions policy.
The point of these types of hearings is to afford the Supreme Court justices an opportunity to poke holes in presented legal arguments. That is, the justices are looking for weaknesses in the arguments they hear, and aren’t discussing their own personal beliefs.
The amicus brief referenced by Scalia details the none-too-uncommon “mismatch” theory, which has long been an argument put forward by skeptics of affirmative action.
The theory, which was examined in depth in 2004 in an analysis published in the Stanford Law Review, claims that “affirmative action in fact hurts its ‘intended beneficiaries,’ defined in the research as minority students, who are ‘mismatched’ to universities that grant them admission in part because they belong to an underrepresented demographic at those institutions,” the Washington Post explained.
Scalia added during the hearing, “I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer. 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. And 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.”
Despite that Scalia doesn’t appear to have suggested himself that African-Americans should go to “lesser schools,” and that he was apparently referring to an amicus brief arguing in opposition to racial preferences, several reporters suggested nonetheless that the justice had indeed said something racist.
“Scalia questions place of some black students in elite colleges,” CNN reported.
The Boston Globe reported, “Justice Scalia: Aspiring black scientists may do better in ‘lesser schools.'”
Bloomberg News added, “Scalia Says Blacks May Do Better at ‘Slower-Track’ Schools.”
Several politicians, and even some celebrities, were quick to condemn Scalia, as leading lawmakers angrily accused the justice of holding bigoted beliefs.
“It’s stunning that a man of his intellect … these ideas that he pronounced yesterday are racist in application, if not intent,” Sen. Harry Reid, D-Nev., said Thursday.
“I don’t know about his intent,” he added. “But it is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench, the nation’s highest court.”
He also tied the Supreme Court justice to GOP front-runner Donald Trump.
“[Scalia’s] endorsement of racist theories has frightening ramifications, not the least of which is to undermine the academic achievements of Americans, African Americans especially,” Reid said.
White House Press Secretary Josh Earnest added Thursday, “I think the comments articulated by Justice Scalia represent quite a different view than the priorities and values that President Obama has spent his career talking about.”
