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

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.



  1. David Collier-Brown

    It’s probably true that a student that has a weaker academic background will feel more stress in a stronger, more competitive school than a middle-rank one. I felt that as an adult student at Windsor taking catch-up classes in what was then called “preliminary year”. The graduation rate for my classmates wasn’t different from anyone else, though.

  2. At least one of the submissions from amici curiae in the Fisher case supported the ‘mismatch’ theory and suggested that black students would do better somewhere else. Was Justice Scalia not entitled to take an argument from a submission made to the court and pose it to counsel for the other side? Isn’t that what judges are supposed to do, i.e. get the assistance of counsel in evaluating the arguments made to them from all parties and intervenors?

    I presume that the Solicitor General was prepared for the point and was able to respond appropriately.

    It is a bit tiresome to have these affirmative action challenges come up, though, given that most of the American universities challenged have much more extensive ‘legacy’ admissions, by which children of alumni or big donors are admitted without meeting the usual academic requirements. If inheritance can be a criterion for admission, why can’t diversity of student population? Because ‘race’ is a prohibited ground for discrimination and ‘class’ and ‘pedigree’ are not? Seems unsatisfactory in principle, somehow.

  3. David,

    The difference here is that the mismatch is not just based on academic strength, but its corresponding status with the race of the applicant.

    Where there are difficulties this is more likely attributable to a hostile educational environment, which is often fostered in part by the same type of thinking which often opposes affirmative action programs to begin with.

    I know I’ve faced the fallout of some of these reactions personally, as someone who attended university in Michigan. Plenty of assumptions were made about me based on appearance alone, until I demonstrated superior competence on standardized testing.

    The issues of affirmative action and its opposition is not just about admission, it’s about the type of educational institutions and the culture that we create in them.


    Certainly it was raised, and Justice Scalia is entitled to do so. What makes it more problematic here is he is known for long-standing opposition to affirmative action in previous decisions (among many other controversies). And the reaction to it by various parties is itself noteworthy.

    What I was really trying to highlight here is the ongoing difficulties that American institutions seem to face with a concept that we almost consider passé. We often don’t celebrate enough how progressive the Charter is, or credit our bench adequately in advancing the principles contained in it. The inter-jurisdictional comparison in this context at least does highlight that to some extent.

  4. Shawn Comeau-Gallimore

    I would find difficulty trying to transpose Justice Scalia’s argument to a Canadian context – I don’t think universities for example in the Maritimes or in the Prairie provinces outside the political corridor of powers between Toronto, Montreal and Ottawa would take too kindly to being called “lesser” schools for hypothetical “slow” students and take pride in offering the best education possible.

  5. Shawn,

    You’re right, but that plays more into the fact that almost all of our schools are publicly funded/subsidized. The educational environment in the US is big business, and some of those business focus on specialized markets, defined as you will.

    Along the same lines, there’s an analysis by Irvin Studin in the paper today,

    While Canada, too, has been recently touched, directly and indirectly, by terrorism of Islamic inspiration, we have thus far, with exceptions, been more measured in our political rhetoric. Perhaps this is because our instincts and traditions in majority-minority relations, while not without significant blemishes, are more prudent than those of our American brethren. We have come to a different conclusion because our society and history are different, and because we have given such questions considerable thought and praxis. Canadian laws and Canadian public leaders, without exemption, today see Canada as a no-pogrom society.
    Of course, before the dynamism of our American neighbours, and in the event of more terrorist attacks, we Canadians will have to be more deliberate in ensuring that we continue to respond in ways that are in keeping with our own realities. Our political leaders, in what they say and do and legislate, will be pivotal in disciplining this response. They may well be the difference between a society that continues to keep its cool (and sense of humour), and one in which we begin to kill each other.