December 18, 2015

Private: Were Justice Scalia’s Remarks in Fisher v. Texas Racist?

Fisher v. University of Texas at Austin, Justice Antonin Scalia, Supreme Court, Tanya Washington

by Tanya WashingtonProfessor 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.  

Of greater concern to me than the patronizing tone of Justice Scalia’s remarks and Justice Thomas’ observation is the fact that both reveal a lack of understanding of educational diversity. The University of Texas (UT) is using race to obtain an educational benefit. Can the Court determine whether how UT is using race is constitutional if it doesn’t understand why it is using race?

The goal that the majority in Grutter recognized as a compelling interest was educational diversity, of which racial diversity is but one aspect. Educational diversity relies on the theory of cognitive disequilibrium as provoking higher order thinking. It takes advantage of a racially diverse student body to provide the cognitive dissonance that forces students to reconcile different perceptions produced by different experiences. 

Justice Scalia’s comments cast affirmative action as an ill-conceived goal that harms, rather than helps, Black students. Implicit in his statement is the idea that the goal of affirmative action is to help Black students, when in fact the goal of educational diversity is not to remediate the effects of racial discrimination for students of color; rather, it is to use racially diverse experiences in the classroom to enhance the educational experience of every student.      

To be fair, Justice O’Connor’s opinion in Grutter did not distinguish between remedial affirmative action and educational diversity, leaving room for Justice Scalia to confuse the two goals. The confusion has constitutional consequences and will inform two questions the Court’s decision in Fisher is expected to answer:  1) whether UT’s use of race as a “factor of a factor of a factor” in a holistic review of applicants is narrowly tailored to achieve educational diversity; and 2) how much racial diversity is enough for UT to achieve the educational benefits it seeks? 

As a proud beneficiary of affirmative action and a graduate of the University of Maryland and Harvard law schools, I was offended by Justice Scalia’s statements, and I know that his comments linking intellectual capacity and race are not true for Black or White students. Having taught at esteemed historically Black colleges and universities, like Howard University, I also know that institutions Justice Scalia refers to as “slower track schools” and "lesser schools" educate and graduate some of the most brilliant minds in the nation, including the late Justice Thurgood Marshall. I understand why his statements inspired such passionate debate.

Pondering whether Justice Scalia’s comments are racist is certainly a provocative question – hence the title of this post. However, it is also important to consider how his remarks obscure the goal that schools employing race-conscious admissions policies seek to achieve. Those Justices in favor of upholding Grutter’s ruling that educational diversity is a compelling interest would do well to define the goal, thereby increasing the odds that using race to that end will withstand constitutional scrutiny in Fisher and beyond.