Supreme Court Justice Antonin Scalia shared some thoughts Wednesday. They hinted at his rationale -- or at least part of his rationale -- for why affirmative action in higher education admissions is either unnecessary or inadvisable.
It's kind of hard to tell exactly what path Scalia prefers. But in the course of oral arguments in the second visit of Fisher vs. the University of Texas to the Supreme Court, Scalia did say this:
There are those who contend that it does not benefit African Americans to get them into the University of Texas [Austin] 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 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.
I'm just not impressed by the fact that that the University of Texas may have fewer [minority students]. 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 I don't think it stands to reason that it's a good thing for the University of Texas to admit as many blacks as possible.
-- Justice Antonin Scalia, oral arguments Fisher vs. University of Texas, Dec. 9, 2015
Which to us sounded more than a little bit like a less-formal version of this:
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. ...We imagine that the white race, at least, would not acquiesce in this assumption.
The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. ...
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
-- Justice Henry Billings Brown, written majority opinion Plessy vs. Ferguson, May 18, 1896
Or perhaps Scalia's comments amount to a more verbose version of this:
A racist is one who despises someone because of his color, and an Alabama segregationist is one who conscientiously believes that it is in the best interest of Negro and white to have a separate education and social order.
-- George Wallace, U.S. News and World Report, 1964
What Scalia said may carry the veneer of data-enriched, modern thinking about race, education and opportunity. It may sound, to some ears, like the hard, cold facts, blended with genuine concern and then wrapped in the imprimatur and prudence that Scalia's lifetime Supreme Court appointment implies.
But there is almost nothing about what Scalia said that should be palatable, that is remotely new or indisputably accurate.
In fact, what Scalia voiced was just a very old set of ideas that have been used from almost the very beginning of this democracy to explain, justify or outright deny all manner of injustice and inequality. It's a special kind of circular logic. This is the logic that once rested on the idea that black slaves weren't fully human or American. So why then should they enjoy any guaranteed rights at all? If black Americans are inherently inferior, aren't they essentially being done a favor when their movements, education, place of residence and employment and partner of choice are socially or legally proscribed? And more to the point today, it isn't all of the aforementioned history and decisions that continue to reproduce socioeconomic inequality largely along racial lines; it's inherent inability or the absence of effort and drive.
Or so these arguments often go.
Scalia's notions -- and they are simply notions -- about widespread and inherent black inferiority are part of a sprawling set of American ideas, policies and yes, even jurisprudence, around race, opportunity and ability. It's a body of thinking and policy-making that has been used at points to justify uneven opportunity or access, then explain away any group culpability for its logical results. And it's a way of thinking that ignores the very real fact that the reason integration became and remains such a contentious and still-incomplete goal is that, strategically, this remains the most assured route to quality schools, housing, health care and every other resource that helps to dictate opportunity.
It is a well-established fact that black and Latino children attend the nation's worst public schools. They are more likely to be taught by the least-experienced teachers, to learn in classrooms in the most ramshackle facilities, and they are more likely to come from lower-income families where conditions often make learning a bigger challenge. What students of color do seem to get more of is harsh discipline, including suspensions and arrests. That costs these same students valuable instruction time too.
As American children make their way through our still racially tiered public schools with some occasional mitigation due to household incomes (i.e. poor, white students don't fare well either), we start to apply different terms, such as the "achievement gap", the "vocabulary deficit" and "standard deviations" in test scores to explain why white students, as a group, often perform better in school. Then we use that same language as evidence not of unequal opportunity, but disparate ability, as if we have no idea how any of this happened or no ability to influence it at all.
And the differences in learning environments and opportunities continues as students work their way through their K-12 years. By the time students reach high school, significant racial gaps remain in access to college prep courses. And when we say access, we mean the mere existence of an AP course or an AP course where books and all the materials needed to pass an AP exam are available and offered at your high school.
Still, some students who come from these schools -- or others -- manage to navigate the college application and SAT/ACT test process and produce results that outflank, by far, the scores posted by Abigail Fisher. Fisher is the white plaintiff at the center of the case before the court. And Fisher’s combined math and verbal SAT scores were 1180 out of a possible 1600 after attending reasonable-quality suburban Houston schools.
In fact, today, once-substantial racial differences in college-going rates in the United States have all but disappeared.
But never fear, the great American social sorting mechanism kicks right back in here.
Perhaps much to Scalia's relief or delight, the vast majority of students of color aren't applying to or enrolling in four-year universities, much less flagships and highly selective colleges and universities.
Instead, they are heading to what Scalia might have been referring to in his "slower track" comment about schools with open admissions (you don't apply; you show up, pay and enroll), much higher student-to-teacher ratios and what are typically bigger classes serving more students who are the first in their families to attend college, those who have to work part- or full-time and or have kids of their own. These open-enrollment schools also often have smaller budgets with which to provide the academic enrichment and assistance resources that are standard at those four-year schools and help students graduate more often.
So, not surprisingly, students who begin college at one of these open-enrollment schools are significantly less likely to graduate than students with similar grades and test scores who started and finished at four-year, selective and flagship schools, according to a Georgetown study. The study's findings aren't new or some aberration. These are well-known, long-established facts inside the education world.
In fact, between 1995 and 2009, 82 percent of white students who enrolled in college for the first time have gone to the 468 most selective colleges and universities, according to the Georgetown study released in 2013. Meanwhile, 72 percent of new Hispanic students and 68 percent of black students heading to college for the first time went to two-year open-enrollment schools.
So what we have here is a pattern of childhood educational inequality that extends it into one's adult years. And that pattern winds up shaping everything from the likelihood that an individual will graduate from college and earn a self-sustaining income to the odds that one's children will do the same. This is a situation we've made.