When Even Trump Calls Foul on Scalia

The controversial situation around affirmative action in American universities has reared its legal head at the Supreme Court of the United States more than once.

Affirmative action was brought into the forefront in 1961, when John F. Kennedy issued an executive and provided financing for it. The Civil Rights Act of 1964 went further, prohibiting discrimination on the basis of race, colour, religion, sex, or national origin, while never explicitly mentioning affirmative action. The Act does not have a comparable component to s. 15(2) of the Charter, but Title VII and subsequent amendments empowered the Equal Employment Opportunity Commission (EEOC) to employ similar actions.

The first university case involving affirmative action was in 1978 in Regents of the University of California v. Bakke, where the Court found that the use of reserved quotas for black medical students at UC Davis violated the Equal Protection Clause of the 14th Amendment, ironically created following the civil war to created to address citizenship rights and equal protection of the law for former slaves in the U.S. Use of affirmative action was allowed when race was used as one of several factors for admissions, as this served a compelling state interest.

A different finding emerged in 1996 in Hopwood v. Texas, where several white applicants to University of Texas School of Law were successful in finding discrimination when they were denied admission despite having superior LSAT and GPA scores than other candidates. Although the case was appealed to the Supreme Court it was never heard, because the school modified its admission practices and the point became moot.

Hopwood empowered schools in several states to refuse to use affirmative action for admissions for several years. Two Michigan cases in 2003, Gratz v. Bollinger and Grutter v. Bollinger, reversed this holding, finding that a narrowly tailored admissions process which uses race to advance the interest of a diverse student body was not unconstitutional. In many ways this reflect a return back to Bakke principles.

In reaction, a ballot initiative in 2006 known as the Michigan Civil Rights Initiative (MCRI) or Proposal 2 made affirmative action in that state illegal. A 2013 challenge to this law in Schuette v. Coalition to Defend Affirmative Action to the Supreme Court was unsuccessful, as the Court found the matter to be one of public policy to be determined by the electorate.

The most recent affirmative action case before the Supreme Court of the United States is Fisher v. University of Texas, which has itself already made two trips to that Court. The 2012 decision remanded the case back to the trial level, with instructions to apply the standard used in Gratz and Grutter. The burden to demonstrate that an admissions program is narrowly tailored enough to obtain the benefits of diversity to an education program, the Court emphasized, lies on the institution.

The second trip of Fisher to SCOTUS happened on Dec. 9, 2015. It’s here that Justice Scalia, who had provided significant dissents in the previous authorities on affirmative action, attracted significant attention. US Solicitor General Greg Garre was submitting to the Court that if race was not used in the school’s admissions policy, the entire student body would likely be white. Justice Scalia responded by saying,

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. 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 the University of Texas may have fewer [blacks]. Maybe it ought to have fewer… 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.

The reaction to this statement has ranged from justification, to indignation and ridicule. Perhaps the most telling statement came from Donald Trump, who is making headlines these days himself,

I don’t like what he said, no, I don’t like what he said. I heard him, I was like, ‘Let me read it again,’ because I actually read it in print, and I’m going, I read a lot of stuff, and I’m going, ‘Woah.’

…

I have great African-American friendships. I have just amazing relationships. And so many positive things have happened.

Perhaps Scalia was simply just picking on the wrong minority.

The academic underpinning behind this reasoning is what is referred to as the academic mismatch theory, but these assumptions have tenuous foundations. William C. Kidder of the University of California and Richard Lempert of the University of Michigan Law School have a forthcoming paper which examines, among other things, the effect of Proposition 2 on minorities. They conclude,

The data we have presented and the studies we have reviewed should disabuse anyone of the notion that abolishing affirmative action will somehow enhance the academic accomplishments and boost the future life chances of minority students. Abolishing affirmative action will, however, reduce the number of well-trained minority professionals and bachelor degree holders…

Affirmative action may be less consequential when the question is whether a minority freshman will graduate, but it greatly affects the number of minorities who will get degrees, and it is the latter that is socially most
important.

An open letter to SCOTUS from professional physicists (currently with over 1500 signatories) states,

…we strongly repudiate the line of questioning from Justice Antonin Scalia based on the discredited Mismatch Theory.

…science is not an endeavor which should depend on the credentials of the scientist. Rather, a good scientist is one who does good science. We hope to push our community towards equity and inclusion so that the community of scientists more closely matches the makeup of humankind, because the process of scientific discovery is a human endeavor that benefits from removing prejudice against any race, ethnicity, or gender. Indeed, science relies heavily on consensus about acceptable results as well as future research directions, making diversity among scientists a crucial aspect of objective, bias-free science. Affirmative action programs that aim to bring the numbers of minority students to more proportional levels are an important ingredient in our ongoing work. Blaming affirmative action for our community’s lack of progress in this regard is not only wrong, it is plainly ignorant of what we as scientists have determined must be done to reform our pedagogical and social structures to achieve the long-delayed goal of desegregation.

The bigger problem with Scalia’s comments and proponents of the mismatch theory is that it encourages the perception that those benefiting from affirmative action programs are less capable or less worthy to an employer. Despite comparable or superior academic performance when in these institutions, job candidates are inherently devalued on the labour market. In part, this explains the hostility that some minorities themselves express about affirmative action, including sentiments by Justice Thomas.

Fisher at this time has only been decided on summary judgement by lower courts. It’s possible that the Supreme Court may ban affirmative action nationally, find specifically that the way that the University of Texas employs it is alone is untenable, or allow the university to justify it again at the trial level.

If the last option is the outcome, the growing body of evidence demonstrating the benefits of what we refer to as the ameliorative nature of programs seeking to redress historic disadvantages should be carefully considered.