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Scourging Scalia: The Left’s Latest Hissy Fit

The Left was at it again this week, launching outrageous attacks on Supreme Court Justice Antonin Scalia. All the usual suspects, from Mother Jones to Senator Harry Reid (D-Nev.), piled on the conservative justice.

There was no legitimate beef. But the Left was bound and determined to mislead the public and divert their attention from the biggest failing of racially discriminatory college admissions programs: the damage they do to the lives and careers of the supposed beneficiaries of those programs.

It started with Wednesday’s oral argument in Fisher v. University of Texas at Austin, when Justice Scalia posed a question about academic mismatch. The Left’s reaction would lead you to believe he was wearing a Ku Klux Klan robe at the time.

For the record, here’s what he said:

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.

The blogosphere and Twitter have buzzed with dishonest criticism ever since: “Justice Scalia Suggests Blacks Belong at ‘Slower’ Colleges,” “Scalia: Black Students Don’t Need Affirmative Action Because They Benefit From A ‘Slower Track,’” “Scalia: Affirmative Action Sends Blacks to Schools Too Advanced for Them,” “Scalia’s raging hypocrisy: Encroaching senility, raging racism, or does he no longer give a f*ck?”

On the Senate floor Thursday morning, Sen. Reid indignantly commented, “It is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench of the nation’s highest court.” White House spokesman Josh Earnest also denounced Scalia, and Rep. G.K. Butterfield (D-N.C.), chairman of the Congressional Black Caucus, called Scalia’s remarks “disgusting, inaccurate and insulting.”

Actually, it was the criticism of Scalia that was “disgusting, inaccurate and insulting.”

The Left has whipped itself into a frenzy, but as these comments demonstrate, Scalia’s critics have deliberately missed the point. Rather than look into the research Scalia was citing, they have launched scurrilous and false claims of racism. It’s easier to engage in racial demagoguery than to address the problem head on, and Scalia highlighted a real problem — academic mismatch.

Studies have shown that when students need a substantial boost to gain admission to a school, they usually end up with lower grades and higher dropout rates. It doesn’t matter if that boost is based on race, ethnicity, being the child of a graduate of the school, or some other factor. When students’ entering academic credentials put them at the bottom of the class, it should come as no surprise that they struggle to keep up with their peers and are far less likely to succeed than similarly credentialed students attending schools where their academic credentials more closely match those of the average student at those schools.

A recent Heritage study explains how this affects students from the top down. University of San Diego Law Professor and U.S. Commission on Civil Rights Commissioner Gail Heriot (who, with fellow Commissioner Peter Kirsanow, filed the amicus brief that Justice Scalia referenced) notes:

One of the consequences of widespread race-preferential admissions policies is that talented minority students end up distributed among colleges and universities in patterns that are very different from those of their white and Asian counterparts. When the schools that are highest on the academic ladder relax their admissions policies in order to admit more underrepresented minority students, schools one rung down must do likewise or they will have far fewer underrepresented minority students than they would have had under a general color-blind admissions policy. The problem is thus passed on to the schools another rung down, which respond similarly. As a result, students from underrepresented minorities today are concentrated at the bottom of the distribution of entering academic credentials at most selective colleges and universities.

Professor Heriot continues:

The problem is not that no academically gifted African-American students are seeking admission to college and universities. The nation is fortunate to have many. But there are not enough at the very top tiers to satisfy the demand, and efforts to change that have had a pernicious effect on admissions up and down the academic pecking order, creating a serious credentials gap at every competitive level.

In other words, instead of students attending colleges that match their academic background, training, and credentials, the racially discriminatory admissions programs of universities like the University of Texas push many students into universities where they are in the bottom of the class from the very start of their college careers. This leads to lower grades, lower graduation rates, and students dropping out of more academically rigorous disciplines like science and engineering – black and Hispanic students abandon those areas of study at much higher rates than whites.

Above and beyond the terrible, personal frustration this must cause individual students, it obviously hurts their long-term success in the careers and professions they would like to follow. Studies have shown that we have fewer black scientists, doctors, and engineers because of affirmative action, which is a detriment to all Americans and our economy.

Given the studies showing the damage caused by racial preference programs, it was entirely fair and appropriate for Scalia to ask the lawyer representing the university about the effects of discriminatory admissions on students. After all, the university has claimed that preferences benefit minority students.

The studies that bring that claim into question make perfect sense and have not been effectively refuted. How many of us can remember being in a class in school where we had problems because we were not as well prepared as others? We certainly remember the frustration and doubts that arose at certain points in our respective undergraduate careers at Xavier University and the Massachusetts Institute of Technology. Can you imagine having that problem in all of your classes? Sure, you’re a bright, hard-working student who wants to succeed. But if you haven’t been prepared for the challenges and academic rigor of that particular class or that particular school, you’re set up for failure.

That was what Justice Scalia was asking about. It is what the Fisher case is ultimately all about. And it is a subject that the lawyers for the university and the Obama administration did their best to avoid talking about in their arguments before the Supreme Court. Why? Because they don’t have an answer to this problem

It’s enough to question whether they really care about these students as individuals. Rather, university administrators seem to care more about increasing “diversity” on their campuses and meeting the quotas they have internalized — at the expense of what is best for individual students.

In his concurring opinion in the first Fisher decision in 2013, Justice Clarence Thomas observed that even though it may be “cloaked in good intentions, the university’s racial tinkering harms the very people it claims to be helping.” Apparently, Justice Scalia’s highlighting of that harm “is deeply concerning” to people like Harry Reid.

Elizabeth Slattery is Legal Fellow and Hans von Spakovsky is a Senior Legal Fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Von Spakovsky is the coauthor of
“Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” (Encounter 2012) and “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside 2014).