U.S. Supreme Court

Was Scalia's comment racist? He notes argument that blacks may do better at 'slower-track' schools

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File photo of U.S. Supreme Court Justice Antonin Scalia courtesy of ABA Media Services.

Justice Antonin Scalia is under fire for a reference on Wednesday to the mismatch theory during oral arguments on the partly race-based admissions program at the University of Texas at Austin.

Scalia’s comment, labeled “offensive and racist” by Above the Law Redline, is at page 67 of this transcript (PDF).

“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,” Scalia said.

“They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

Scalia was referencing the mismatch theory explained in an amicus brief by UCLA law professor Richard Sander, the Washington Post reports. Sander argues that racial preferences harm minorities with lower academic credentials because they fall behind in a learning environment with higher standards. His conclusions are based on his controversial study of racial preferences in law school that concluded academic preferences resulted in lower graduation rates and lower success rates on bar exams.

His study is refuted in another amicus brief by Yale law professors Ian Ayres and Richard Brooks, who say their analysis shows eliminating affirmative action would actually reduce the number of black lawyers in the country.

Scalia’s remarks also reflected arguments in an amicus brief by University of San Diego law professor Gail Heriot, Reuters reports. The brief said that “the nation now has fewer African-American physicians, scientists and engineers than it would have had using race-neutral methods” of admissions because of the higher drop-out rate for minority students in some demanding science programs.

Above the Law says Scalia neglected to mention black astrophysicist Neil deGrasse Tyson, who received a master’s degree in astronomy from the University of Texas. “But please,” the blog says, “Scalia, tell me more about how black people need slower tracks to comport with your DISGUSTINGLY RACIST WORLDVIEW ABOUT EVERYTHING.”

A Los Angeles Times op-ed acknowledges the mismatch theory is controversial, but says it is “silly to suggest that Scalia was being racist when he clumsily invoked” it. The proposition that many blacks have lesser credentials than more privileged white students is an acknowledgment of inequality caused by racial discrimination and unequal schools, the op-ed says. And that is a reason to support consideration of race in university admissions, the op-ed concludes.

Day of oral arguments corrected at 8:30 a.m.

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