Photo by Stephen Masker, via Creative Commons.
Photo by Stephen Masker, via Creative Commons.

What Scalia Said

by / Dec. 15, 2015 3pm EST

Keep them in their place

This is what United States Supreme Court Justice Antonin Scalia said from the bench during oral argument in Abigail Noel Fisher v. University of Texas et al. on December 9, 2015. The case, on its face, is trivial. It is important because it is part of the ongoing fight by conservatives to destroy affirmative action at all levels of higher education.

Scalia said, basically, that African-American students should go to schools with less demanding curricula because they would do better there. The implication of those remarks was that affirmative action was bad because it damaged the people it purported to help, and that African-Americans would do better in less demanding schools. These are his words (punctuation is according to the preliminary transcript posted by the court): 

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—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 a too—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—and I—I don’t think it—it stands to reason that it’s a good thing for the University to admit as many blacks as possible.

If this seems egregiously racist, it is because Scalia’s remarks are egregiously racist. Substitute “Jews” or “rich white folks” for blacks in that statement and you’ll see why. 

The lawsuit that opened the door to this current assault on affirmative action

Abigail Fisher sued because she was denied admission to the University of Texas. She argued that UT admitted students less qualified than she, or who had participated in fewer extracurricular activities than she, so she was forced to attend a less prestigious school. During oral argument, one of the justices pointed out that her case was moot, since she has already graduated. Her lawyer said she wanted to sue the university in a lower court for damages: She wants her application fee returned and compensation in the difference in lifetime earnings that will be caused by her having attended the less prestigious school. She cannot file that lawsuit unless the Supreme Court says the UT admissions policy was unconstitutional.

UT’s admissions policy

UT has a policy of admitting students who were in the top 10 percent of their class. In 2002 its student population of 8,000 had only 272 black students. That is slightly over 3.4 percent at a time when the black population of Texas was slightly over 12 percent. 

So UT refined its admissions model: In addition to the automatic admission of students in the top 10 percent (which meant students in elite high schools had the same access as students in lousy high schools), it added a “holistic” category, which let UT admit students who were in schools that didn’t rank, out-of-state-students, and students who had been screwed in other ways by the structure of Texas society. Like blacks and Hispanics. After it did that, the enrollment of blacks doubled. 

“Mismatch” and the wrong document

The prime document opponents of affirmative action have depended on is a November 2004 article in Stanford Law Review, Richard H. Sanders’s “A Systematic Analysis of Affirmative Action in American Law Schools.” It is the source of the “mismatch theory,” which holds that students who are placed in universities or colleges above their station or capability do badly; they do better in places appropriate to them. That is what Scalia was saying in his remarks in the oral testimony in Fisher.

The article has statistics for a lot of things; it provides none for “mismatch.” There is a further problem with it: Sanders’s article is about affirmative action in law school admission and performance, not in undergraduate education. The situations are not at all the same. Admission to a graduate program for a student who has done four years of college is not at all like admission to a college by a student who has been in a very good or a very bad high school. It is the latter affirmative action primarily addresses.

The basic tenet of the “mismatch effect” or the “mismatch theory” is, if we let underqualified people into elite universities they will be harmed, because they cannot compete with other students coming into those universities from elite schools. We protect them by sending them to schools where the competition isn’t so rough. That was the substance of Scalia’s statement. 

I don’t know if Sanders’s article about law school admissions and performance is on the mark or off the wall. I do know it has nothing to do with undergraduate education. There have been many careful recent studies that have demonstrated that the mismatch theory, when applied to undergraduate education, is horseshit.

In a December 10 article in the Washington Post, for example, Sigal Alon, author of Race, Class, and Affirmative Action (Russell Sage Foundation 2015), writes, “The findings from both [Israel and the United States], when taken together, unequivocally establish that affirmative action, whether class- or race-based, does not harm admitees’ success in college or labor market prospects. To the contrary, the beneficiaries of preferential treatment in college admissions in Israel and the U.S. thrive at elite colleges. They would not be better off attending less selective colleges instead.” And Matthew M. Chingo (“Are Minority Students Harmed by Affirmative Action,” Brookings Institution, March 2013) shreds the mismatch theory. “Not a single credible study has found evidence that students are harmed by attending a more selective college.” There are many more such substantiated refutations of the mismatch theory.


Sanders’s article was one of the documents Scalia had before him when he postulated that blacks might do better in less-demanding schools; it was part of an amicus brief filed in the case. The other thing might be the memory of what happened in American universities after Martin Luther King was murdered in 1968. Colleges and universities looked in the mirror and saw how white they were, and immediately reached out to admit many minority students theretofore denied admission. 

City University of New York adopted an open admissions policy: You graduate a New York City high school, you get into a CUNY college. Unfortunately, those students were entering those doors after leaving some of the worst schools in the nation. They came in, they went into classes with students from well-funded districts, and many of them flunked out simply because they didn’t have the basic writing and mathematical skills to engage ordinary courses. The problem wasn’t with them, but rather with the preparation they hadn’t gotten before being plunged into a university environment. Many of them flunked out; of course many of them were angry. The same thing happened at Harvard. And Buffalo.

It was like giving someone who hasn’t been taught to drive the keys to a fast car and telling him to drive in heavy traffic: Of course it is unlikely to end well. Once colleges and universities realized that, not only did retention rates reverse themselves, but so did overall performance. Many of those students not only got through college, but got through with excellent grades. The problem had nothing to do with native ability; it was all about access to basic skills. In New York City, if you went to Stuyvesant or Bronx Science or Brooklyn Tech or a private school, your teachers were preparing you for college; if you went to school in a poor neighborhood, they were preparing you to get by. 

In the 1970s, American universities began developing transition programs that would help students in such situations get them from the point where they exited a bad high school and entered a university environment. UB had a program called Experimental Program in Independent Studies (I was associate director of it for a while), the entire function of which was to crash-course students through the language and mathematical skills they hadn’t gotten in high school. The CUNY system did the same. (I was involved in the planning for that, too.) So far as I know, students who were given the help that they hadn’t gotten earlier did as well as anyone else. According to some studies, they did better.

Scalia’s lousy scholarship

Scalia is often described in the popular press as the most scholarly of the current justices. He quotes complex studies. The problem I’ve found with him is he quotes the wrong studies. When Diane Christian and I worked on our most recent book on capital punishment we found him using a widely discredited study by a UB economics professor that claimed to prove that every execution prevented a whole bunch of murders. Scalia used that study to uphold death sentences or deny stays of execution. The study is nonsense. Scalia isn’t the most scholarly of the current justices. He is the most sophistic. He is superb at adducing evidence to support any position he has a prior opinion on. Justice has nothing to do with it. 

His outrageous remarks in Fisher aren’t anomalous; they’re just the remarks he just got busted for. 


Clarence Thomas, who almost always votes with Scalia, said not a word during the Fisher oral argument. He asked no questions; he made no comments. He almost never speaks from the bench. Thomas was appointed by George H. W. Bush in 1991 to succeed the great jurist Thurgood Marshall on the court; his nomination was presented in the by Senate John Danforth, whose family foundation, when I was young, had a college scholarship program that excluded Jews. (I found that out when I applied for one and the guidance counselor called me in and said, “Didn’t you read the guidelines? You’re not eligible.”) Scalia, the longest-serving Justice on the court, was named by Ronald Reagan in 1986.

Bruce Jackson is the James Agee Professor of American Culture at UB and a SUNY Distinguished Professor. He is also Affiliate Professor in the UB Law School. He and Diane Christian are authors of Death Row (Beacon, 1980) and “In the Timeless Time”: Living and Dying on Death Row in America (University of North Carolina Press, 2012).