The Re-Education of Justice Scalia

WASHINGTON, DC - SEPTEMBER 15:  U.S. Supreme Court Associate Justice Antonin Scalia addresses the The Legal Services Corporat
WASHINGTON, DC - SEPTEMBER 15: U.S. Supreme Court Associate Justice Antonin Scalia addresses the The Legal Services Corporation's 40th anniversary conference luncheon Septemeber 15, 2014 in Washington, DC. Former Secretary of State Hillary Clinton is also scheduled to address the LSC, which was established by the Congress in 1974 'to provide equal access to justice and to ensure the delivery of high-quality civil legal assistance to low-income Americans.' (Photo by Chip Somode/Getty Images)

While Supreme Court Justice Antonin Scalia's comments doubting the ability of Black students to succeed at competitive universities may not be a total surprise, given his well-known and relentlessly right-wing views, they are extremely disappointing given his leadership position in American society. He made the comments during oral arguments last week in the case of Fisher v. The University of Texas at Austin revisiting that university's affirmative action in admissions policies. Sadly, we are living in an age in which too many public leaders, or those aspiring to high leadership positions, seem to feel free to say any darn thing that pops into their heads no matter how ignorant, corrosive or just plain wrong. When those statements disparage and degrade an entire segment of the population that the leader is sworn to serve, the comments become more than merely outrageous; they threaten to damage the entire fragile fabric of this very diverse national community.

Justice Scalia should know better; if nothing other than judicial temperament could guide him, he should know that a wise judge must think twice before opening his mouth to say something really stupid and highly prejudicial in front of the parties arguing their case before him. Judicial prudence alone, if not a more well-honed moral sensibility, should have checked his tongue before he pronounced a view that African American students should go to "slower track" colleges. From the Supreme Court transcript, here is the entire exchange with Gregory G. Garre, the lawyer for the University of Texas:

MR. GARRE: What I'd like to say too is, if 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.

JUSTICE SCALIA: 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 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. 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.

MR. GARRE: This Court heard and rejected that argument, with respect, Justice Scalia, in the Grutter case, a case that our opponents haven't 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. And, frankly, I don't think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they're going to inferior schools. I think what experience shows, at Texas, California, and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America.

Justice Scalia was apparently asking some kind of question about whether the strange theory of "mismatch" in higher education has any validity. The "mismatch" theory claims that affirmative action policies harm minority students by placing them in environments where they cannot succeed; a great deal of social science research and actual practice in higher education debunks this theory. But whatever anybody thinks of the theory, asking questions about it in the context of oral arguments in an affirmative action case is completely fair. As an experienced justice, Scalia surely has the rhetorical repertoire to ask the question with sensitivity and grace -- if he wanted to do so. Instead, he phrased the question in a way that made a declaration from the bench that seemed not only to agree with the theory, but to take it to an even baser level of vile mischaracterization of Black students as unable to perform.

Justice Scalia needs some serious re-education. I'm not sure what kind of history or sociology Nino Scalia studied as an undergraduate at Georgetown University, but it appears that he was untouched by any study of American history, slavery, the Civil War, Reconstruction and the rise of the Civil Rights Movement, the economics and sociology and psychology of generations of poverty, the segregation of American public education, the condition of families and cities. Perhaps he skipped Theology classes on social justice.

Quite obviously, his comments flunk any reasonable test of knowledge and critical reasoning about the racial and social history of the United States and the reasons why public policy must create educational and social opportunities for individuals who continue to suffer the pernicious effects of two centuries of racism; private action alone is inadequate to remedy the broad social consequences of the deep poverty that is the consequence of the denial of equal opportunity in education and employment.

Affirmative action is not about pitting the lesser versus the better; rather, it's about creating opportunity for those who have historically had none, who, if given the opportunity, can flourish and change the course of history for their families.

Poverty certainly afflicts White as well as Black and Hispanic children in America, but in American cities, the pernicious effects of poverty clearly segregate neighborhoods, schools and school systems, and Black and Latino children suffer the effects of poverty disproportionately. Abysmal public schooling, reinforced by racially biased housing patterns and funding formulas, has left generations of impoverished urban Black children on the lowest rungs of educational achievement. The "achievement gap" is not about the ability of students to succeed, but rather, about the ways in which generations of deficient public schools have robbed children of their real academic potential; impoverished families cannot send their kids to private schools, hire tutors and coaches, spend money on all of the perks that open pathways to elite colleges.

The only way to remediate the poverty that reinforces racism is to improve educational opportunities for Black children who can and will succeed mightily, changing the fortunes of their children and families significantly.

Scalia's reference to "a less advanced school, a slower track school" is also an affront to Historically Black Colleges and Universities, as well as those institutions of higher education who actually do a great job educating a broadly diverse student body. This comment plays into the current vogue of exalting a few elite colleges and universities while disdaining the rest. Is a college with a very tiny number of African American students really "better" than one that has many? Perhaps all students at the University of Texas should be protesting policies that diminish their opportunities to experience a truly diverse student body.

When given the chance to become academically powerful, Black and Hispanic students excel just as much as White students. At Trinity in Washington, where I am president, we educate a student body that is majority African-American and Latina, mostly low income women from the District of Columbia where the poverty rate is among the worst in the nation for families living on the eastern side of the city. Our experience demonstrates that students who have been previously marginalized in the American experience of elite education can and do learn very well when given the opportunity to do so in an environment that supports and encourages their success.

Scalia's comments also reinforce the pernicious idea that what is mostly White and elite is best, and somehow should not be disturbed by the challenges that come with greater integration of different learning styles and cultural habits, different skin colors and belief systems and points of view. His statement reveals a deep yearning to turn back the clock to some mythical times when nobody made trouble about integrating schools; a time at least before 1954 when Brown v. Board of Education made it clear that separate could never be equal, that the true promise of the American experiment could only be realized when all children have equal opportunity in education.

Seven years ago, nearly 70 million Americans voted for the first African American president in the history of the United States. At that time, commentators heralded President Barack Obama's election as the beginning of a new "post-racial" American society. Now on the verge of a new election season, the United States is suffering a paroxysm of racial hatred, violence and protests; campuses boil with racial tensions and serious demands for improved racist conditions faster. The Black Lives Matter movement became necessary because of repeated and reprehensible instances of police violence and homicide against Black men. The presidential campaign is shot through with racial and religious hatred and despicable public statements by candidates who would be our leaders. The idea of building a Good Society where people live together in peace and justice is largely dismissed as a "politically correct" fantasy.

Into this hot mess we now have a Supreme Court Justice carelessly tossing verbal grenades about the capacity of Black students to succeed in college. What might have seemed risable at any other time is incendiary in this time. Justice Scalia needs to reconsider his ill-conceived notions of the potential of Black students to succeed at the University of Texas and other universities; he needs to go back to school, perhaps spending some quality time on some college campuses where he can learn more about the powerful potential and performance of Black students when they have opportunities to excel in higher education, including those colleges deemed "elite."

Justice Scalia needs some re-education on the idea that a national public policy to ensure equal opportunity in higher education is a genuine public good, that our national moral compass on the topic of race and opportunity needs a firm re-set to ensure ongoing educational and economic justice for future generations.