It is unknown whether the Supreme Court will approve or reject the race-conscious admissions plan at the University of Texas at Austin, but there is no question about what has emerged as the most controversial moment of Wednesday’s hearing.
It came courtesy of Justice Antonin Scalia, the reigning champion of provocation at the high court.
Scalia lit up social media and was denounced Thursday on the Senate floor for comments he made that seemed to scoff at the value of diversity at selective universities by sharply questioning whether African Americans might instead be helped by “having them go to a less-advanced school . . . a slower-track school where they do well.”
It is hardly surprising that Scalia stirred controversy at the hearing: If anything, his recent public comments about the court have become even more blunt and the criticism of his colleagues when he is on the losing side ever more stinging.
Senate Minority Leader Harry M. Reid (D-Nev.) used his morning remarks on the Senate floor to say that the only difference between Scalia and Republican presidential candidate Donald Trump is that “Scalia has a robe and a lifetime appointment.”
“These ideas that he pronounced yesterday are racist in application, if not intent,” Reid said. “I don’t know about his intent, but it is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench on the nation’s highest court.”
That prompted a rush from his conservative defenders, who said that, like other justices, Scalia might have been playing devil’s advocate, asking UT’s lawyer Gregory G. Garre to respond to a popular — if disputed — conservative academic theory.
That theory holds that granting preferences to minority candidates who have not been prepared for the rigorous academic challenges at elite universities is self-defeating and sets up the students for failure.
Justice Clarence Thomas expressed exactly those sentiments two years ago when the court first considered UT’s program.
As a result of race-based affirmative action, Thomas wrote in a separate opinion, “many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete.”
Thomas has said that he thinks his degree from Yale Law School is tainted because he was admitted under an affirmative action program, and he has wondered whether he would have been better off going to law school in his home state of Georgia.
But as is often the case with Scalia, the court’s longest-serving justice and a lightning rod for liberals, it is as much how he said it as what he said.
“There are those who contend that it does not benefit African Americans to — 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.
He added: “I’m just not impressed by the fact that — that the University of Texas may have fewer [African Americans]. Maybe it ought to have fewer . . . you know, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less.”
Scalia was equally provocative last month when addressing law students at Georgetown. He has criticized the Supreme Court’s recent decision that said same-sex couples have a constitutional right to marry.
He told the students that the courts should not define which minorities are protected if the Constitution is not specific.
“It’s up to me to decide deserving minorities?” Scalia asked. “What about pederasts? What about child abusers? So should I on the Supreme Court [say]: ‘This is a deserving minority. Nobody loves them.’
“No, if you believe in democracy, you should put it to the people,” he said.
Scalia’s comments about what is called the “mismatch” theory of affirmative action also seemed to be unconnected to what the court was debating at the time.
In UT’s unique system, the flagship university admits about 75 percent of its freshmen based on their graduation rankings from Texas high schools, under the “top 10 percent” rule. Because many of the state’s high schools are dominated by one race or ethnicity, that has created a diverse applicant pool.
The court is considering the method used to select the other 25 percent of freshmen. In UT’s “holistic” evaluation of those applicants, race is one of several considerations, along with leadership, obstacles overcome and socioeconomic factors.
The students in that applicant pool, according to UT’s brief in the case, are more like the ones Scalia might think would be successful: They are more likely to have higher SAT scores, to have attended integrated and higher-ranked schools, and to have a parent who went to college, a general indicator of future success.
If nothing else, Scalia’s comments prompted a new round of academic debate on the mismatch theory.
There were several briefs to the court on both sides of the issue. Just as strongly as opponents of affirmative action contend that racial preferences hurt their intended beneficiaries, so do supporters claim that the academic research is sloppy and that it does not take into account the benefits that come from graduating from an elite university.
Yanan Wang contributed to this report.