by Tanya Washington, Professor of Law, Georgia State University College of Law. Follow the professor on Twitter @Profwashington8
But, more important than how his comments are perceived is how they frame the debate about affirmative action and how they will inform the Supreme Court’s decision in Fisher v. University of Texas at Austin.
The issues before the Court center on whether the means of obtaining the racial diversity that serves educational prerogatives is narrowly tailored and therefore constitutional, and not whether the end to be achieved (educational diversity) is a compelling and constitutional goal. Though the constitutionality of educational diversity was settled as a matter of law in Grutter v. Bollinger in 2003, the comments of several justices, including Justice Scalia, during oral arguments in Fisher suggest that its constitutional future is far from certain.
In oral arguments before the Court on December 9, 2015, Justice Scalia made the following controversial statements about the legitimacy of educational diversity:
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 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 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 [Blacks]. 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.
Justice Scalia is not the first justice to express these views. In his dissent in Grutter v. Bollinger Justice Thomas observed, “[O]vermatched students . . . . find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions.” These views tap into the perception of affirmative action as a way of admitting “unqualified” students of color into colleges and universities where they cannot compete.