Were Scalia's Affirmative Action Comments Truly Racist?

Justice Antonin Scalia has come under fire for comments made while hearing an affirmative action case last week. NBC News reports:

Scalia questioned whether some minority students are hurt by the [University of Texas race-based admissions] policy because it helped them gain admittance to schools where they might not be able to academically compete.

“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,” Scalia said referencing an amicus brief.

The criticism was swift.

“It is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench of the nation’s highest court,” Senate Minority Leader Harry Reid, D-Nev., said on the Senate floor on Thursday. “Scalia’s endorsement of racist theories has frightening ramifications, not the least of which is to undermine the academic achievements of African Americans.”

Taken at face value, Scalia’s comments could be perceived as bigoted. However, when we consider the context in which his comments were made, Scalia should be afforded the benefit of some doubt. He was hearing an affirmative action case, after all. It’s not like the topic was admitting any African-American to the University of Texas. The topic was admitting blacks specifically on account of their race when they might not otherwise qualify for admission. If we assume that Scalia was referencing the topic at hand, and not detouring into some irrelevant generalization, what he said makes perfect sense. Indeed, there’s no reason to assume Scalia was making a blanket generalization, especially when his comments are placed in the context of the case’s arguments.

Regardless, the substance of the issue under consideration remains. If students are not prepared to succeed at the University of Texas, yet get admitted solely on account of their race, they have not been properly served. Indeed, if Harry Reid and other critics of Scalia’s remarks are truly concerned about racism, they should unite against polices which treat people differently on account of their race. However well-intentioned such polices may be, they are the very definition of institutional racism. To Scalia’s most likely point, affirmative action may even set up certain black students for failure.