Where is this coming from?
In case you missed it, the Supreme Court held oral argument for Fisher v. University of Texas at Austin, to decide whether race-conscious admissions should be upheld. If you’ve read any reactions on social media, then you’ve probably heard that Justice Scalia “suggest[ed] that some black students might belong at “slower-track” universities.”
Justice Scalia certainly received a lot of criticism
for espousing such an antiquated idea. Senate majority leader Harry Reid
denounced Scalia for endorsing “racist ideas” from the bench, stating “[t]he idea
that African-American students are somehow inherently intellectually inferior
from other students is despicable. . . . It’s a throwback . . . to a time that
America left behind a half century ago.”[1]
It seems lots of people are angry. I’ve even seen one law
professor from a second-tier law university suggest that we should begin
putting the word “Justice” in quotation marks when referring to Justice Scalia.
Well, despite all the rhetoric: Justice Scalia never said that he thought black students were dumber or belong
at slower universities.
To fully understand this, you have to understand the purpose
of oral arguments.
By the time the Petitioner stands at the podium before the
Supreme Court for oral argument, both sides have already done extensive
research, come up with their legal theories, written briefs detailing those
theories, and then submitted those briefs to the court. Indeed, 99% of the advocacy is already complete
when the oral argument begins.
So then why do we bother with oral arguments at all?
Basically, it’s to make the lawyers for each side look like
idiots. The Justices (who are supposed to be neutral at the outset of the
case), attempt to poke holes in each side’s legal theory. To do this, they rely
heavily on hypothetical examples,
arguments at the margin, and other logical and rhetorical devices. The oral
argument process affords the arbiters an opportunity to test the limits of each
side’s legal theory, to ensure it is sound.
Anyone who has gone to law school and done a round of oral
arguments can tell you that just because
you put forward an idea at oral argument, doesn’t mean you actually believe that
idea. Here’s a prime example of John
Roberts pushing
the limits of the Solicitor General Donald Verrilli’s argument in favor of
the individual mandate for the Affordable Care Act in NFIB v. Sebelius.
Roberts ended up upholding the
individual mandate, despite his prodding
questions. He was, in fact,
playing the devil’s advocate.
So when Justice Scalia engages in oral argument, he is
trying to find any sort of flaw in
the attorney’s legal theory. To do that, Justice Scalia may choose to borrow arguments from other parties and
see how the attorneys react. In fact, that
is exactly what happened here.
Justice Scalia’s controversial statements came in response
to the argument that ending affirmative action would lead to a decrease in
the enrollment of black students. Justice Scalia responded:
“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 not 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
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.”
Paraphrased, Scalia basically said, “some people have found
that black students who get into the University of Texas simply because of
their race actually aren’t benefited in the long term because they can’t handle
the rigor of the University of Texas. Maybe those black students would be
better off at universities where they wouldn’t struggle so much.”
As it turns out, Scalia wasn’t putting forth his own
genuinely held racist ideas that black people are stupider than white people.
He was articulating arguments put forth in an amicus
curie brief summited by two members of the United States Civil Rights Commission. That brief articulates a
theory known as the mismatch
effect. A theory which has been put forth by law professors at UCLA and Stanford
Law. A theory which is based on quantitate studies purporting to show that
students who got into more rigorous institutions because of race do worse that
students who went to less rigorous institutions in the long run.[2]
In other words, Scalia was asserting a well-established, well
supported, and intelligently crafted counterargument.
Now, maybe this counterargument was flawed. Maybe the data
is bogus (Hint: it
probably is). But that’s beside the point.
Justice Scalia was putting forth a counter argument in a forum
where he was supposed to be putting
forth difficult counter arguments. He put forth a counter argument, endorsed by law professors at two of the
finest legal universities in the country. He put forth a counter argument that had considered actual data regarding
how students behave. He was putting forth a counterargument that deserved to be addressed. He was
doing his damn job.
Rather than looking at this information and deciding whether
such an argument has merit, Twitter, Facebook, Huffington Post just decided it
would be easier to call Justice Scalia a racist and draw pictures of him
wearing a confederate flag.
That’s disappointing. Because, for people who care so much
about free speech, we sure tend to ignore what people actually say.
[1] For
those keeping track, Justice Scalia never said that black students were
intellectually inferior. This is a straw man fallacy.
Don’t fall for it.
[2] Despite
the rhetoric, this isn’t based on a
premise of racially superiority. For a related train of thought see Malcom
Gladwell’s David and Goliath, which basically argues that students (of any
race) are better off being a brilliant student at a mediocre institution rather
than a mediocre student at a top-tier university.
