Nel's New Day

December 9, 2015

Scalia’s Affirmative Action Quote of the Week


Media pundits have concentrated on Donald Trump’s outrageous statement that he would keep all Muslims from entering the United States. Last month, Justice Antonin Scalia made a connection between LGBT people, pedophiles, and child abusers in a speech to first-year law students at Georgetown. Today he made outrageous—and dangerous—statements during arguments before the Supreme Court. Scalia is much worse than Trump–Scalia’s in control, Trump isn’t.

Supreme Court Justice Antonin Scalia is interviewed by The Associated Press, Thursday, July 26, 2012, at the Supreme Court in Washington. (AP Photo/Haraz N. Ghanbari)

Antonin Scalia (AP Photo/Haraz N. Ghanbari)

In an affirmative action case out of Texas, the high court listened to lawyers debate the use of race in college admissions. Scalia’s statement:

“There are – 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 less – a slower-track school where they do well.

“One of – one of the briefs pointed out that – 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 – in classes that are too ­­ too fast for them.”

Talking about black students accepted under affirmative action programs, he said, “They’re being pushed into schools that are too advanced for them.” He added that black students benefit from a “slower track” because “it does not benefit African-Americans” who don’t succeed academically in schools that accepted them under affirmative action policies. He at least started a statement with “there are those who contend.” Nowhere in his statements, however, did he disagree with those contenders.

To summarize Scalia’s responses to today’s case, affirmative action is bad for black students because they’re not smart enough to succeed in good schools.

Fisher v. Texas comes from Abigail Fisher, who complained that she was denied admission to the University of Texas because she is white. A lower court found that she wouldn’t have been admitted under any circumstances, but the case has plowed its way up through the courts to the top deciders. The court sent the case back to the 5th Circuit Court of Appeals last year in 2013, finding that the case needed to be re-examined under “strict scrutiny.” The lower court again found in the university’s favor, and, like a zombie, the case is back.

The university lets in the top ten percent of all high school graduating classes for 75 percent of the accepted students and then uses a process considering race and several other attributes such as socioeconomic status instead of only class rank for the remaining 25 percent. Hopwood v. Texas forbade the consideration of race in admissions in 1997 so the policy of accepting the top ten percent attempted to create racial diversity. Only class rank, however, could exclude a National Merit semifinalist who attended a high-achieving high school—thus the reason for a more holistic approach for part of the students accepted. Race was considered as one attribute after 2003 when the Supreme Court upheld affirmative action as constitutional. Race was added to add “minorities with unique talents and higher test scores to add diversity … to the student body,” according to the 5th Circuit decision.

Today conservatives argued that Texas cannot put race into the mix for a holistic decision. Justice Ruth Bader Ginsburg used the same argument as she did two years ago, that the supposedly “race-neutral” process of admitting the top 10 percent isn’t race-neutral because it makes virtue out of a long history of school and housing segregation and discrimination. Justice Sonia Sotomayor fiercely challenged Fisher’s attorneys.

Justice Elena Kagan was silent: she recused herself because she worked on the case as solicitor general. That brings the number of deciders down to eight—four dedicated conservatives, three progressives, and Justice Anthony Kennedy who has become the swing vote. Meanwhile, three of the conservatives already decided in opposing affirmative action, and Justice Samuel Alito argued that advocates for affirmative action are making racist or condescending judgment. Chief Justice John Roberts kept asking when racial discrimination remedies would no longer be necessary. (He was one of the judges who opened the door letting states discriminate against minorities in their constitutional right to vote by claiming that the Voting Rights Act, which would have celebrated its 50th anniversary this year, wasn’t necessary.) Roberts asked, “What unique perspective does a minority student bring to a physics class?”

The effects of a Supreme Court decision in Fisher will be long-reaching, affecting every university in the nation. There may not be a definitive ruling at this time either. Kennedy asked lawyers if the trial court should collect more evidence although he may have changed his mind later on. As he said, however, “We’re just arguing the same case [as in 2013]. It’s as if nothing had happened.”

Kennedy might have found it useful that 168 black and Latino students with grades as good or better than Fisher’s were also denied entry into the university that year. Fisher also turned down an offer to attend the university starting her sophomore year if she earned a 3.2 GPA at another Texas university school her first year.

The year that Fisher applied to UT, 92 percent of the students were admitted from the top ten percent of the in-state spots. She wasn’t one of them. Her grade point was average and her SAT scores not great. Fisher was represented pro bono in the lawsuit by Project on Fair Representation, funded by conservatives who want to do away with any affirmative action. The group also took the case to the Supreme Court that eradicated vital portions of the Voting Rights Act of 1965.

Fisher has already graduated from Louisiana State University, her second choice, and works in finance at an Austin firm. Her only harm, according to a news reporter who asked, is her inability to tap into the UT’s alumni network and perhaps missing out on a better first job. She seeks only the return of her application fee and housing deposit–$100 in damages. On the other hand, the organization representing her wants to use Fisher to attack the equal protection clause of the 14th Amendment. During the past 150 years, there has been no ban on laws and government programs that consider race. Project on Fair Representation wants to change that.

In a 1971 ruling, the Supreme Court ruled that government could not mandate colorblindness when doing so would defeat the integration requirement of Brown v. Board of Education. In another case, Justice Harry Blackmun wrote, “In order to get beyond racism, we must first take race into account. There is no other way.” An increasingly conservative court has been involved in so-called reverse discrimination cases.

By now, the conservative portion of the court supports Roberts when he said, “The way to stop discriminating on the basis of race, is to stop discriminating on the basis of race.” Scalia called the Voting Rights Act a “racial entitlement.” Basically, the Supreme Court may return to the 1956 Southern Manifesto by Strom Thurmond and Richard Brevard Russell to resist overturning school segregation with the equal protection clause.

Either the current Supreme Court rules in favor of the equal protection clause, or the Project on Fair Representation will go trolling for another self-proclaimed white victim to re-address the issue.

1 Comment »

  1. How can he even be a judge?


    Comment by Lee Lynch — December 11, 2015 @ 12:35 AM | Reply

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