Scalia and Trump: Two Peas in a Rotten Pod

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)

Antonin Scalia is the judiciary's Donald Trump. Trump doesn't want Muslims to come to America and Scalia, in not-so-subtle language, has suggested that black students are just a little too "slow."

On Wednesday, the Supreme Court heard arguments in so-called Fisher II, the case brought by surrogates for Abigail Fisher, a young white woman who sued the University of Texas, Austin, claiming that the University's race conscious admissions practices resulted in her rejection, thus violating her Constitutional rights. This was the second go 'round for Fisher v. U of T, despite evidence that she was not harmed. The University has documented that she would not have been admitted with or without their very minor consideration of race, thereby suggesting she had no "standing" to bring the case at all.

Among Scalia's several offensive comments, he suggested this about black students: "... 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 being pushed ahead in classes that are too fast for them."

On behalf of my school and other educators, I participated in crafting a brief in this case and have a powerful interest in the result. Affirmative action is a necessary and still insufficient remedy for the persistent stain of American racism. And, as acknowledged by previous court rulings, diversity has inarguable educational benefits. By virtue of my direct involvement, I had early access to briefs filed in support of the plaintiff. Among them was the brief, submitted by Stuart Taylor and Richard Sander, from which Scalia drew his offensive opinion. The brief's conclusions were soundly rebutted by the defense, but Scalia attends only to those arguments that support his pre-determined bias. It is the legal equivalent of getting all your news from Fox.

From a purely educational point of view, this entire debate is nonsensical. The unstated assumption, to which both sides stipulate, is that there is an objective academic standard for admission. As considered by the Court, therefore, affirmative action is the extent to which divergence from this standard is allowed in the service of educational diversity or remediation for centuries of racism.

However, the original stipulation is deeply flawed. There is no objective standard. Standardized test scores and grades in traditional school environments are not an accurate measure of intelligence or potential. These measures are heavily biased toward white culture. These measures privilege the conventional view of intelligence (linguistic and mathematical) while ignoring the 6 other intelligences identified by Harvard's Howard Gardner and others.

As a result, admission offices, even in elite, highly selective schools, weigh many different qualities and qualifications (holistic admissions) in assembling a powerful, eclectic class. They consider athletic ability, whether someone plays the violin or viola, legacy status, community service, travel experiences, hobbies, geographic origin, gender, creativity, social activities, hardships overcome, personal attributes as determined in interviews . . . I could go on.

The deepest irony in this case is that, should the plaintiffs prevail, virtually the only quality that may not be considered in admission is race. Scalia and others are saying, "Colleges should not consider, in any way, the aspect of your existence by which I and most Americans define you." It is clear that race may be considered in police profiling, stop and frisk practices, housing discrimination, bias crimes, locating pollution-emitting municipal facilities, but we are miraculously color blind when considering opportunity.

It is also clear that race may be considered when Scalia inaccurately and offensively demeans black students, but may not be considered among the myriad factors used in admission practices. Simply astonishing.