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Justice Scalia's Comments in Affirmative Action Case Draw Fire

Comments this week by U.S. Supreme Court Justice Antonin Scalia suggesting that minority students may be harmed by race preferences in admissions and they may be better off at "slower-track" institutions drew growing criticism and sparked a more intense look at the theories he referenced.

Senate Minority Leader Harry Reid (D-Nev.) took to the floor of his chamber Thursday to denounce Scalia's comments about African-Americans in higher education.

"These ideas are racist in application if not intent," Reid said. "I cannot speak to Justice Scalia's intent. But it is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench of the nation's highest court."

During oral arguments Wednesday in Fisher v. University of Texas at Austin (Case No. 14-981), Scalia pressed the university's lawyer about the ill effects of racial preferences in admissions at selective institutions.

"There are those who contend that it does not benefit African-Americans to—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," Scalia said.

"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 continued. "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."

Scalia's comments immediately drew fire. The civil rights activist Al Sharpton, who was in the courtroom, said outside the Supreme Court, "when I heard Judge Scalia  suggest that maybe blacks do better at a school that was not as fast as UT, I didn't know if I was in the courtroom at the United States Supreme Court or at a Donald Trump rally."

Most observers believe Scalia was attempting to explain the so-call "mismatch theory" against affirmative action—that some minority students admitted to selective colleges through affirmative action perform more poorly than they would in other colleges.

The specific brief Scalia appeared to be referring to from the bench was a friend-of-the-court brief filed on the side of the challenger to racial preferences by Gail Heriot, a law professor at the University of San Diego, and Peter N. Kirsanow, a Cleveland lawyer. Both are members of the U.S. Civil Rights Commission.

"If the mounting empirical evidence is correct—as we believe it is—the nation now has fewer African-American physicians, scientists, and engineers than it would have had using race-neutral methods," the brief says.

Heriot took to Twitter Thursday to say: "Scalia's being called racist. But the evidence shows we'd have more black scientists w/o race preferences."

The Heriot/Kirsanow brief cites the mismatch theory research of Richard Sander, an economist and law professor at the University of California, Los Angeles. 

Sander filed his own brief in Fisher, on the side of neither party, with journalist Stuart Taylor Jr., with whom he wrote a book about mismatch theory.

"The evidence for the link between large preferences and mismatch effects continues to grow stronger, and universities continue to ignore the issue," Sander's brief says. "It is important for the court to be mindful of the strong potential for large racial preferences to be harmful to their intended beneficiaries, thus weakening the distinction often drawn between 'benign' and 'invidious' discrimination."

Some observers have also suggested that Scalia's comments may have been influenced by the writings of his colleague, Justice Clarence Thomas. In 2013, when the court issued a 7-1 decision sending the Fisher case back to a lower court to conduct more intense constitutional scrutiny, Thomas issued a 20-page concurrence that touched on mismatch theory.

"The University [of Texas at Austin] admits minorities  who otherwise would have attended less selective colleges where they would have been more evenly matched," Thomas wrote. "But, as a result of the mismatching, many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete."

Mismatch theory has been challenged by the academic establishment. In a friend-of-the-court brief filed in Fisher II on the side of UT-Austin, the American Educational Research Association said that "multiple studies confirm that purported problems of stigma due to race-conscious admissions and the educational harms resulting from the so-called mismatch of minority students at selective institutions have not been established by the studies said to prove them and are contradicted by more sound research."

"The stigma and mismatch arguments ... ignore the extensive data showing that minority students gain significant educational and economic benefits through their attendance at selective institutions—including higher graduation rates and increased earnings and labor force participation following graduation," the AERA brief continues.

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