A lot of arguments and attacks in politics are not totally fair, honest, or logical. But sometimes, the combination of unfairness, idiocy, and brazen hypocrisy still has the capacity to surprise. So it is with the past 24 hours’ apparently coordinated Two Minutes’ Hate against Supreme Court Justice Antonin Scalia over questions he asked at oral argument in Fisher v. University of Texas, the Court’s latest case on racial preferences in college admissions.
Fisher is on its second trip to the Supreme Court after two decades of lawsuits over the University of Texas’ various efforts to incorporate race as a factor in admissions. In an effort to ensure racial, geographic, and economic diversity in its in-state admissions after the Supreme Court started taking a more skeptical view of racial preferences, Texas passed a law (signed by then-Gov. George W. Bush) admitting the top 10 percent of every high school class in the state into the University of Texas.
But UT still uses race as a factor in admissions for the rest of its student body. Fisher is yet another in a line of cases challenging that policy, which the Supreme Court has never explicitly approved or banned, but rather has subjected to a series of balancing tests, with recent decisions tightening the level of scrutiny to be applied. While the Court’s conservatives would plainly prefer to do away with making race a factor in college admissions, the need to persuade Justice Kennedy to that position (or away from it) has led to a lot of briefs and arguments focused on the practical impact of doing so.
Enter Gregory Garre, the lawyer defending the university, who was in the midst of making the following argument in response to questions by Justice Kennedy (it starts on page 66 of the transcript):
[I]f this Court rules that University of Texas can’t consider race, or if it rules that universities that consider race have to die a death of a thousand cuts for doing so, we know exactly what’s going to happen. Experience tells us that….this happened at the University of Texas after the Hopwood case: Diversity plummeted, especially among African-Americans. Diversity plummeted at selective institutions in California, Berkeley, and UCLA, after Prop 209. And that is exactly what’s taking place today at the University of Michigan. Now is not the time, and this is certainly not the case -
This was where Justice Scalia cut in:
There are 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 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 that the University of Texas may have fewer. 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. And… 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…
Now, first of all, as should be obvious from reading this, Scalia was not talking about black students in general. He was specifically responding to Garre’s point about the specific subset of black students who would not be admitted unless you considered their race, who Garre contended would no longer be admitted under a race-neutral or race-blind admissions policy. He was making a practical argument about educational outcomes.
Scalia’s response—which of course looks a little messier on the page than the written word does, but that’s the nature of oral argument—was to ask whether those specific students were really being so well-served by being admitted to a college that would turn them away as academically below standards but for the color of their skin.
As should also be obvious, Scalia was also not airing some brand-new idea he just thought up, but raising a point that data in the briefs had argued and supported, which is something justices of the Court do literally every day in arguments. There were scores of amicus briefs filed in Fisher, including more than a dozen supporting the petitioner. The empirical evidence Justice Scalia cited most likely came from the brief filed by two members of the U.S. Commission on Civil Rights, which spent 13 pages on it and contrasted the more successful experience of historically black colleges.
Richard Sander, an economist and law professor at UCLA, has co-written a book making the same argument from empirical data, and filed an amicus brief focusing entirely on the question of what the data shows about African-American and other minority student success rates at colleges with race-conscious admissions policies. There is now a fairly substantial body of empirical research on this issue.
The Academic Mismatch Theory
The argument is that students who are (1) not up to a college’s usual admissions standards and (2) nonetheless admitted for reasons wholly unrelated to their academic backgrounds are less likely to have good educational outcomes than if they had gone to a college for which they were more properly prepared and qualified. It’s not a new argument. Yale Law professor Stephen L. Carter alluded to the debate as an ongoing one in his 1992 book “Reflections of An Affirmative Action Baby.” Justice Thomas, concurring in the Court’s previous decision in Fisher two years ago, himself made the argument at length:
Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates. In the University’s entering class of 2009, for example, among the students admitted outside the Top Ten Percent plan, blacks scored at the 52d percentile of 2009 SAT takers nationwide, while Asians scored at the 93d percentile. ..Blacks had a mean GPA of 2.57 and a mean SAT score of 1524; Hispanics had a mean GPA of 2.83 and a mean SAT score of 1794; whites had a mean GPA of 3.04 and a mean SAT score of 1914; and Asians had a mean GPA of 3.07 and a mean SAT score of 1991….Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University.
…The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched. 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. Setting aside the damage wreaked upon the self-confidence of these overmatched students, there is no evidence that they learn more at the University than they would have learned at other schools for which they were better prepared. Indeed, they may learn less.
Thomas rather acidly compared this to claims from proponents of slavery and segregation that they were really just acting in the best interests of African-Americans.
The litigants this time around have made a bit more of an effort to quarrel with Sander’s data on this point, and some academics have attempted to debunk Sander’s research. Indeed, that is how Garre responded to Justice Scalia’s question, after first contending that it was no longer a relevant consideration in the Court’s legal calculus (which may be true, and is doubtless true with regard to how Justice Scalia would resolve the case if he were deciding it himself, but is not all that relevant to an argument over educational outcomes aimed at persuading a wavering colleague):
This Court heard and rejected that argument, with respect, Justice Scalia, in the Grutter case, a case that our opponents have and asked this Court to overrule. If you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time…they fare better.
One can find both anecdotal examples and data fairly easily to support the “mismatch” theory, and you don’t have to go to far-right fringe Web sites to get them. In 2013, the Los Angeles Times profiled one such student, and the New York Times published a long opinion piece on research by Sander and others into the question. Justice Ginsburg asked at the same argument yesterday whether the 10 percent rule created an incentive for black students to stay in black school districts. This question only makes sense if you think those same students would struggle to make the top 10 percent in more diverse high schools.
Indeed, it would be surprising if pushing students into schools where they are not as prepared as their peers did not cause a high rate of failure and disappointment. This is true, and not even controversial, when you discuss preferences that are not based on race. Consider how Dick Cheney, in his autobiography, discusses how being from Wyoming got him into Yale:
Cheney ended up going home, discouraged about school, and working at laying power lines. He would later return to his education at the University of Wyoming, which was more his speed, graduate successfully, and a little more than a decade later he was White House chief of staff.
Nobody familiar with his subsequent career would argue Cheney was somehow intellectually inferior. But he was both academically and socially unprepared at 18 for Yale, and it nearly ended his education. If we are serious about educating young people of every color—especially in an age when college dropouts often leave with massive debts they can never hope to repay—we should want to avoid subjecting more of them to experiences like Cheney’s.
Yet for asking questions about empirical data that was cited in the briefs and in a previous concurring opinion by another justice in this very case, Scalia has been roundly broiled by the left-wing press and Democratic politicians as being some sort of racist. Mother Jones headlined its article “Justice Scalia Suggests Blacks Belong at ‘Slower’ Colleges,” while Senate Minority Leader Harry Reid took to the Senate floor to declare that “it is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench on the nation’s highest court.”
This was particularly rich coming from Reid, who in 2004 notoriously claimed that Justice Thomas “has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don’t — I just don’t think that he’s done a good job as a Supreme Court justice,” a claim that turned out to be based entirely on one opinion that Thomas hadn’t actually authored.
Empiricism and Its Enemies
Even beyond the brazen dishonesty of mischaracterizing Scalia’s question and ignoring how Supreme Court arguments work and the existence of a decades-long public policy debate on the precise question he asked, what makes this flap so particularly dumb is its anti-intellectual attitude towards empirical data.
Since Brown v. Board of Education, the Supreme Court has relied on, and received briefing on, empirical examinations of the educational results of racial discrimination and race-based remedies in education. Whether or not you think it should do so, rather than deciding cases about race discrimination as matters of constitutional principle, the practice of filing a “Brandeis brief” has a long and venerable heritage, much of it supplied by liberals. If it is, in fact, empirically the case that racial preferences are harming students, is that something we should not want to know?
Scalia’s critics may argue they do not find Sander’s data more persuasive than that of his critics, and that justices should only cite correct facts, even when questioning lawyers at argument. But this is a terribly intellectually blinkered way to go into the intellectual exercise of oral argument on a constitutional question of great practical importance, and it only serves to emphasize why we give judges life tenure and why Scalia and his colleagues have long resisted cameras in their courtrooms.
Or it may simply be that the whole purpose of this brouhaha is simply to influence Justice Kennedy by previewing the reaction to a decision that does not go the way the critics want. But that’s just further reason to believe that the people screaming at Justice Scalia right now don’t even believe their own dumb, dishonest argument. Nobody else should, either.
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