Photo: Jim Mone/AP
Near the end of oral argument in a high-profile affirmative-action case Wednesday, conservative U.S. Supreme Court Justice Antonin Scalia suggested that black students benefit from a “slower track” at less prestigious schools and are thus harmed by affirmative action. The comments come during a time of racial turmoil on campuses across the country, from Yale to the University of Missouri.
“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,” Scalia said from the bench. “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.”
Scalia went on to say that it could be bad if the “really competent blacks” do not go to these “lesser” schools because they might then not become scientists. “I don’t think it stands to reason for the University of Texas to admit as many blacks as possible,” he concluded.
Scalia appeared to be referencing an amicus brief filed by Gail Heriot of the United States Commission on Civil Rights. In her brief, Heriot points to a study that shows minority students are less likely to major in science or engineering if their test scores and grade point averages put them in the bottom half of the admitting class at their institution. Heriot says that if UT actually wanted to help minorities, it would find black students who were admitted to MIT and convince them that their chances of succeeding at UT, which is less selective, are higher. The brief also points out that one-third of blacks who received a doctorate in science or engineering in 2006 got their degrees from historically black colleges and universities (HBCUs). These colleges, on average, have lower admissions standards than UT.
Multiple studies have looked at this so-called mismatch theory of affirmative action. Some have shown that minority students benefit from attending elite institutions even when their high school backgrounds are weaker than average for the class. In another brief in front of the court, a group of scholars argued the mismatch theory has been disproven.
The point is irrelevant in this case, however, because affirmative action itself is not supposed to be on trial. The plaintiff, Abigail Noel Fisher, a white woman who was denied admission to the class of 2008, has not asked the justices to ban the use of race entirely. And in an earlier decision sending this same case back down to a lower court for further review two years ago, seven of the justices wrote that universities may weigh applicants’ race for the purpose of achieving diversity.
At question in this case is whether UT has shown that it needs to consider race, and if the university is using the most narrowly tailored possible means to achieve its goal of diversity. The university admits most of its entering class through a race-blind top 10 percent plan, which automatically admits any Texas high school student who graduates in the top tenth of his or her class. The plan boosts admission of minority students, in part because many Texas high schools are segregated.
But the university has contended that it needs to use race as one of many factors in admitting the 20 percent or so of its entering students who do not get in through the top 10 percent plan. These include out-of-state students and talented applicants who attend highly competitive high schools where they were edged out of the top tenth. Most of the black students admitted in the portion that considers race have higher test scores on average than the black students admitted in the race-blind top 10 percent plan. This calls into question Scalia’s point that affirmative action hurts black students by putting them in classes where they are out of their depth, since Texas’ consideration of race tends to net students with higher test scores.
Some of the Supreme Court justices on Wednesday seemed to question the utility of considering race in admissions at all, suggesting they may be backing away from their compromise on Fisher two years ago.
“What unique perspective does a minority student bring to a physics class?” Chief Justice John Roberts asked at one point, challenging UT’s contention that one of its goals was to attain classroom diversity. (In 2002, UT found that 90 percent of its classes had only one or zero black students in them.)
Roberts also asked several times when universities would be able to stop using race as a factor. “At what point does [the university] say, OK, it worked?” Roberts asked.
The chief justice stressed that allowing a public institution to consider race was “a very serious matter” and that he was worried a decision in favor of UT could mean a right to do so unimpeded.
Justice Clarence Thomas, the court’s only black member, did not break his years-long silence at the oral argument (he very rarely asks questions from the bench). But he has spoken and written about how affirmative action affected his own life negatively. He said in a 2007 interview that after he graduated from Yale Law School he felt discriminated against when looking for jobs, sensing that his interviewers believed he got into a top law school only because of his race. “Now I knew what a law degree from Yale was worth when it bore the taint of racial preference,” Thomas wrote in his memoir. “I was humiliated — and desperate.”
For his part, Justice Anthony Kennedy, who has opposed affirmative action in past decisions, expressed frustration that the court was essentially hearing the same case over again, with no new evidence to review. Kennedy repeatedly asked UT’s lawyer what he would do if the Supreme Court remanded the case back to the district court, suggesting the justices could dodge a divisive decision and punt the case back down once again.
“We’re just arguing the same case,” Kennedy said. “It’s as if nothing had happened.”
Justice Stephen Breyer, who has voted to uphold affirmative action in the past, played peacemaker during the oral argument. He reminded his colleagues that just two years ago, seven of the justices signed on to an opinion that “promised” not to kill affirmative action in the first Fisher decision. That decision was released a full eight months after it was argued, raising speculation that the justices had brokered a last-minute deal not to kill affirmative action, slowing down the opinion writing.
“That opinion by seven people reflected no one’s opinions perfectly. But that is what it says: not fatal in fact,” Breyer said.
It remains to be seen whether the court will stand by that assessment from just two years ago, or further scale back the right of universities to consider race in admissions.