Media Jumps The Gun, Attacks Scalia For Perfectly Reasonable Question

scalia-300x196If you’ve been reading headlines from liberal and mainstream media alike today, you might be shocked to hear that Supreme Court Justice Antonin Scalia is apparently an overt racist. During oral arguments on an affirmative action case Fisher v. University of Tex. at Austin, Scalia suggested that blacks simply don’t belong at elite schools. “Justice Scalia Suggests Blacks Belong at ‘Slower’ Colleges” reported Mother Jones. “Scalia: Maybe black students belong at ‘less-advanced’ schools” reported The Hill.

Most of these reports came out before the transcript was released, based on accounts of those who were in the courtroom at the time (oral arguments are never televised). But once the transcript emerged, it turned out that critics had jumped the gun. Scalia wasn’t sharing his own views, he was asking about a very serious academic critique of affirmative action that others had made.

First of all, it’s worth noting that oral arguments are not an avenue for justices to share their views on the case at hand; it’s an opportunity to suss out any holes in the arguments of both parties. To that end, justices often advance arguments and theories they do not necessarily hold. Take for example Chief Justice John Robertsextremely harsh questioning of government lawyers in NFIB v. Burwell, even though he eventually voted to uphold the individual mandate anyways.

Arguing before the Supreme Court is a notoriously nerve-wracking experience, since justices try to find arguments and lines of attack attorneys would never consider. In this case, the transcript make it clear that Scalia was asking a question about a theory put forward by others, not himself:

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. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them. I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer.

Scalia’s question came after a lawyer for the University of Texas argued that ending affirmative action would lead to a decrease in black students. To that end, asking about a brief the court had received arguing that would be a good thing doesn’t display insensitivity, it shows good judicial instincts.

As it happens, Scalia was pretty accurately citing a brief filed by two members of the U.S. Civil Rights Commission. They point to a study showing that black scientists are much more likely to have graduated from historically black colleges, even though those schools are less academically stringent than elite universities:

With only twenty percent of total black enrollment, these schools were producing forty percent of the black students graduating with natural science degrees, according to the National Science Foundation. Those same students were frequently going on to earn Ph.D.s from non-HBCUs. The National Science Foundation reported, for example, that thirty-six percent of the blacks who earned an engineering doctorate between 1986 and 1988 received their undergraduate degree from an HBCU.

Why have HBCUs been so successful? [The authors] believed that unlike at mainstream institutions, African-American students at HBCUs were not grouped at the bottom of the class. Roughly half were in the top half of the class.

Scalia isn’t citing some crackpot theory that only these two civil rights officers are worried about, by the way. The “mismatch effect” is a pretty common critique of affirmative action in academia that’s based on pretty hard data. The most prominent book on the subject wasn’t written by cranks, it was written by UCLA and Stanford law professors.

The theory is simple enough that even a layman can understand. Suppose that an Asian and black student apply to a pretty good school like USC, but also a much better school like Notre Dame. Based on grades and ability alone, neither student would get into Notre Dame. But as a result of affirmative action, the black student gets into both schools while the Asian student only gets into USC.

The theory behind affirmative action is that the black student would benefit from graduating from Notre Dame, the school with more prestige¹. But the workload at elite schools is also more strenuous and more competitive. While the Asian student might end up valedictorian, the black student could end up with a B average. Or even worse, while the Asian might end up graduating with C’s and D’s while the black student could flunk out entirely with thousands in debt and nothing to show for it.

That’s the theory anyways. It has its proponents and its detractors, but much of the evidence put forward by the proponents ought to concern those who sincerely care about minority students’ academic achievement.

Black college freshmen are more likely to aspire to science or engineering careers than are white freshmen, but mismatch causes blacks to abandon these fields at twice the rate of whites.

Blacks who start college interested in pursuing a doctorate and an academic career are twice as likely to be derailed from this path if they attend a school where they are mismatched.

About half of black college students rank in the bottom 20 percent of their classes (and the bottom 10 percent in law school).

Black law school graduates are four times as likely to fail bar exams as are whites; mismatch explains half of this gap.

So no, Scalia wasn’t actually saying he believed that blacks should be content to just go to lesser schools, he was asking about others who had argued as much. But even if he had, it isn’t crazy or racist to believe that advancing minority students from schools where they’d do great to schools where they’d struggle could have unintended negative effects.

¹And National Championships. And Heisman winners. And all-time wins.

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This is an opinion piece. The views expressed in this article are those of just the author.

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