Justice Scalia, Affirmative Action and the Perils of Oral Argument

WASHINGTON, DC - APRIL 17:  Supreme Court Justice Antonin Scalia waits for the beginning of the taping of 'The Kalb Report' A
WASHINGTON, DC - APRIL 17: Supreme Court Justice Antonin Scalia waits for the beginning of the taping of 'The Kalb Report' April 17, 2014 at the National Press Club in Washington, DC. The Kalb Report is a discussion of media ethics and responsibility at the National Press Club held each month. (Photo by Alex Wong/Getty Images)

Ever since the oral argument last week in the Supreme Court in Fisher v. University of Texas, which involves the constitutionality of the University of Texas' affirmative action program, Justice Antonin Scalia has been castigated and excoriated by commentators, mostly on the left, for asking the attorney for the University of Texas about the so-called "mismatch" objection to affirmative action. In Justice Scalia's words: "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."

Although I often disagree with Justice Scalia, and although I emphatically disagree with him about the constitutionality of affirmative action, the outrage and condemnation sparked by this comment is completely unwarranted. Justice Scalia's comment, which asked about the merits of an argument frequently made against affirmative action, and which was made specifically in briefs before the Supreme Court in this very case, was perfectly appropriate. As is often the case, Justice Scalia might have helped himself by framing his comment in a more sensitive manner. But the plain and simple fact is that his question gave the attorney for the University of Texas an opportunity to respond to one of the central arguments made against the constitutionality of affirmative action.

The "mismatch" argument runs more or less as follows. Colleges and universities generally admit students based on their academic achievements and potential, as reflected in their standardized test scores, their high school GPAs, and the nature of the courses they took in high school. These criteria have been shown to be reasonably good at predicting academic success at the college level.

When a college employs affirmative action, it typically admits some students who would not otherwise be admitted based on their academic credentials because their presence would add diversity to the institution and to the student body. Predictably, those students generally do less well academically in college, on average, than most students who are admitted solely on the basis of academic potential. This phenomenon may be exacerbated by a variety of factors, including a sometimes less than congenial or supportive atmosphere for minority students on campus, but it is a perfectly predictable consequence of admitting students, who would not otherwise be admitted on the basis of academic potential, whether because of affirmative action, because they are good football players, because they play the oboe, or because they are the children of potentially generous donors.

In the affirmative action context, as in the other settings, this raises the question whether the college is exploiting the students for its own ends -- to achieve diversity -- at the expense of the students' own best interests. Put simply, is a student better off graduating in, say, the bottom 20 percent of a first tier college or in the top 20 percent of a second tier college?

This is not an easy question. If we were discussing your own kid, what would you think?

As a former Dean and Provost at the University of Chicago, I have had this conversation many times over the years with friends and former students who want advice about how to advise their own children. Most often, I've had this conversation with wealthy individuals who know they can get their kids into a top tier college, which hopes someday to receive a large gift in appreciation, but who know from their kids' SAT scores and high school records that, purely on the basis of academic potential, their kids wouldn't get into a top tier college.

What they worry about is the impact on their kids of "being in over their heads." They worry in part about how good an education their kids will actually get if they're in over their heads academically, and they worry in part about the effect of a mediocre college performance on their kids' sense of self-confidence. As highly successful people themselves, they understand the importance of self-confidence. They worry that, if their kids barely get by in college, they will have their self-confidence beaten out of them. It's often a tough call.

This is essentially what Justice Scalia was asking about. A number of social scientists have studied the "mismatch" theory and compared the experience of minority students who are the beneficiaries of affirmative action with those who have not benefited from affirmative action. That is, the idea is to compare the experiences of college students with more or less equivalent academic potential, some of whom attend first tier and some of whom attend second tier colleges.

The results of these studies suggest that the concern that the intended beneficiaries of affirmative action are actually being harmed rather than helped is largely unfounded. In comparing these two groups, the data suggest that the students who attend the first tier schools do less well in terms of academic performance in college, but that they are as likely to graduate, as likely to have a satisfactory college experience, and as likely -- indeed, more likely -- to get good jobs upon graduation than their peers at second tier schools.

But, of course, there are also social scientists who disagree. Although the weight of authority at the moment appears to be on the side of those who find that affirmative action does, indeed, benefit its intended beneficiaries, the matter is still open to debate. Moreover, even if the matter were resolved with respect to the average student entering a college in an affirmative action program, this does not mean that every such student benefits from the experience. Depending on the background, self-confidence, and makeup of the student, the experience can either be a good one, or a not so good one. Indeed, that's precisely what my rich friends worry about with respect to their own kids.

Now, in my own view, none of this has anything to do with the constitutionality of affirmative action. Rather, these are interesting details that should be taken into account by individual students and their families in making individual decisions for themselves. But my view of affirmative action, unfortunately, is not the view of the Supreme Court. In the Supreme Court's view, it is unconstitutional for public institutions of higher education to take race into account in making admissions decisions unless they have a compelling interest for doing so. Even the possibility that the mismatch theory is correct, at least for some students, might be sufficient, under that standard, to invalidate affirmative action programs. That is bad constitutional law, but as long as it is the law of the land it is perfectly appropriate and sensible for a justice to ask about this.

It is time that we stopped condemning each other for asking hard questions, however much we might not like them.