Supreme Court Justice Antonin Scalia is introduced at the University of Minnesota on Oct. 20 as part of the law school’s Stein Lecture series in Minneapolis.  (Jim Mone/AP)

Supreme Court Justice Antonin Scalia, no stranger to controversy, drew fire Wednesday after suggesting that African American students might be better off attending “slower-track” universities.

During a hearing of oral arguments for the case of Fisher v. University of Texas at Austin, to decide whether race-conscious admissions should be upheld at Texas’s flagship university, Scalia cited “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.”

He went on to say: “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 schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

To many, the justice appeared to be arguing that black students are not qualified to attend higher-tier institutions and would in turn benefit from enrolling in “slower” ones — the suggestion seemed to be — “where they belong.”

“Parks and Recreation” actress Rashida Jones, who is part African American and a graduate of Harvard, denounced Scalia’s comments as racism with tweets hashtagged “#impeachscalia.”

While many dismissed Scalia’s statements as a classic provocation from one of the Supreme Court’s most vocal conservative judges, his argument has roots. Scalia was referring to a friend-of-the-court brief filed in the case, which details a notion popular among affirmative action opponents: the “mismatch” theory.

[Court divided over University of Texas race-conscious admissions]

In the past decade, some scholarship has gathered around the idea that affirmative action in fact hurts its “intended beneficiaries,” defined in the research as minority students, who are “mismatched” to universities that grant them admission in part because they belong to an underrepresented demographic at those institutions.

The most prominent articulation of mismatch theory comes from Richard Sander’s “A Systemic Analysis of Affirmative Action in American Law,” published in 2004 in the Stanford Law Review. Sander, who co-authored the court brief with legal writer Stuart Taylor, is a law professor at the University of California at Los Angeles. He argues that because minority students who are admitted to a school through race-based admissions tend to have lower academic credentials, they struggle to thrive in a learning environment with higher standards than those for which their prior education prepared them.

This scenario, according to Sander, has a ripple effect that causes these students to opt for a less difficult major or decide not to pursue further education because of the perception that they are not suited to an academic environment.

Sander concludes that had these same students enrolled at a less-competitive school — one for which they were awarded admission independent of race-conscious criteria — they may have achieved greater success in the long run. Using data on the academic distribution of black students who would qualify for law school under race-blind policies and the difference between black and white law school attrition as well as bar exam passage rates, Sander estimates that 7.9 percent more black law students would pass the bar if racial preferences were eliminated from admissions.

These assertions have been widely disputed, most notably by Yale Law School’s Ian Ayres and Columbia Law School’s Richard Brooks, who contributed to a friend-of-the-court brief opposing the consideration of mismatch theory in Fisher v. University of Texas at Austin.

Ayres and Brooks conducted their own data analysis, also published in the Stanford Law Review, in which they used data to simulate a scenario where there was no admissions boost for black students, finding that eliminating affirmative action would actually reduce the number of black lawyers in the country by 12.7 percent.

Though the researchers acknowledge that mismatch exists as a result of race-conscious admissions, they disagree with the claim that it necessarily has a negative effect on the minority students who arrive on campus less prepared than their white peers.

“The real question is what we want affirmative action to achieve,” Brooks told the New York Times in 2013. “Are we trying to maximize diversity? Engagement in the classroom? Whatever it is, I don’t think the purpose of affirmative action is for everyone to have average grades.”

Sander’s affirmative action study cites the disproportionately low average grades among black law school students as evidence that they may fare better in less rigorous learning environments, but Brooks countered that striving alongside those who appear at first to be more capable can productively encourage growth.

Other papers have questioned mismatch theory’s assertion of a causal link between black students’ enrollment at elite schools and their passage of the bar. Daniel Ho, a professor at Stanford Law School, ran his own empirical study and found that attending a more selective school has “no detectable effect” on whether a black student passes the bar exam. A 2007 study called “The Effects of Affirmative Action Higher Education” produced similar findings — that “minority students who benefited from affirmative action earned higher grades and left school at lower rates than others, and they expressed neither greater nor less satisfaction.”

As most of the major scholarship around mismatch theory focuses on law school admissions and, to a lesser extent, STEM fields, it is unclear how large a role it will play in the Supreme Court decision on Fisher v. University of Texas at Austin. The plaintiff, Abigail Fisher, launched the case after being denied undergraduate admission to UT Austin, which wants to apply race-conscious consideration to 25 percent of its admits.

Fisher, who is white, claims she was rejected from the college because of her race in a way that violates the Supreme Court’s previously established guidelines on race-based admissions.

In response to Scalia’s reference to mismatch theory, UT’s lawyer Gregory Garre said the court had already rejected that argument in its ruling on Grutter v. Bollinger, a landmark affirmative action case. “If you look at the academic performance of holistic minority admits versus the top 10 percent admits,” Garre responded, “over time, they fare better.”

Justice Anthony M. Kennedy, who will likely be the deciding vote in the case, seemed to express exasperation during the hearing over the lack of wholly convincing claims from either side. He said the arguments were just a repetition of what they had been when the court first considered Fisher’s claim two years ago.

“We’re just arguing the same case,” Kennedy said. “It’s as if nothing had happened.”

The day after Supreme Court Justice Antonin Scalia suggested that black college students might be better off at a "slower-track school," Senate Minority Leader Harry Reid (D-Nev.) blasted him on the Senate floor. (C-SPAN)

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