To start out the year 2016 I’ve decided to write about something that has stuck in my craw since the issue first came about. I find it galling, really, to have to write about something of this sort in the new year of 2016 but it is there nonetheless and I cannot in good conscience not write about it.
The topic at hand is the questioning by Supreme Court Justice Antonin Scalia during oral arguments in the affirmative action case, Fisher vs. University of Texas at Austin. His comments are well documented but they are worth recounting, only because this line of thinking is shared by a significant proportion of the population. Below is the full exchange begun by Gregory Garre, the attorney for UT.
Garre: “If this Court rules that the University of Texas can’t consider race, or if it rules that universities that consider race have to die a death of a thousand cuts for doing so, we know exactly what’s going to happen…Experience tells us that.” (When the use of race has been dropped elsewhere) “diversity plummeted.”
Scalia: “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 less — a slower-track school where they do well. One of — one of the briefs pointed out that — that most of the — 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 — that they’re being pushed ahead in — in classes that are too — too fast for them. I’m just not impressed by the fact that — that the University of Texas may have fewer (black students). Maybe it ought to have fewer.”
Garre: “This court heard and rejected that argument, with respect, Justice Scalia….frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools.”
I want to get back to Scalia’s comments, but first it is useful to go over the facts of this case, which seem to barely warrant a review by the Supreme Court. UT admits the overwhelming majority of its students based on the Top Ten Program, that is, if you graduated from a Texas high school within the top 10% of your class, you were admitted if you applied. In the year that Fisher applied, 92% of the entering class gained admission on that basis. For the other 8% of seats that were open, as Vox explained, other factors were taken into consideration including based on a “holistic” process. Two scores were given from this process: one for essays, leadership activities, and background, which included race; and the other based on grades and test scores. The overwhelming majority of students accepted for admission under this process were white. Given that the inclusion of race as a factor was not a discriminatory quota, there is little here except to assert, in general, that any consideration of race is unconstitutional under the Equal Protection Clause of the 14th Amendment.
The majority of legal analysis of the Fisher case itself has centered on Grutter vs. Bollinger, mostly because it is the Supreme Court’s latest statement on the issue of affirmative action. In this case, the Court ruled that University of Michigan Law School did not discriminate when taking race into account among a number of other factors in order to ensure a diverse student body, especially in including previously disenfranchised and excluded minorities, as long as there was a compelling interest in doing so and it passed the definition of “strict scrutiny.”
Given that the Court attempts to maintain continuity and precedent (known by the Latin term stare decisis), the wellspring for this decision was really based on the case of University of California Regents v. Bakke from 1978. There are two competing constitutional interests at play according to the majority opinion written by Justice Lewis Powell. One is to ensure that the Equal Protection Clause of the 14th Amendment apply not only to protect the interests of African-Americans in “dialing back the clock to 1868” in a United States that no longer resembles the one when the amendment was passed, but to all persons. The other is under the academic freedom afforded schools and colleges under the First Amendment known as the “four essential freedoms.”
Forgetting in his argument that Justice Powell was a good constitutional judge but a poor historian, this other interest may come as a surprise to those not familiar with these competing interests. This is not surprising given the partisan–and many racist–arguments against affirmative action. Powell invokes two previous cases in outlining the four essential freedoms. He writes:
“Mr. Justice Frankfurter summarized the “four essential freedoms” that constitute academic freedom:
“`It is the business of a university to provide that atmosphere which is most conductive to speculation, experiment and creation. It is an atmosphere in which there prevail “the four essential freedoms” of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'” Sweezy v. New Hampshire, 354 U. S. 234, 263 (1957) (concurring in result).
Our national commitment to the safeguarding of these freedoms within university communities was emphasized in Keyshian v. Board of Regents, 385 U.S. 589, 603 (1967):
“Our Nation is deeply committed to safeguarding academic freedom which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment . . . . The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, [rather] than through any kind of authoritative selection.’ United States v. Associated Press, 523 F. Supp. 362, 372.”
What Powell indicated was that, given these conflicting rights (given that no right is absolute), that when the university takes racial factors into account into admissions that there needs to be both a substantial state interest in ensuring diversity, and that strict scrutiny must be applied to such racial or ethnic factoring. The first time around, when the Supreme Court remanded the Fisher case back to the appellate court in 2013, the majority indicated that while not a quota–and hence not an outright violation of the Equal Protection Clause–that the court had not applied strict scrutiny in determining whether UT had established a substantial state interest. Or, at least, that’s what it seemed given that the logic which comes down by the Roberts Court is oftentimes sophomoric.
It is important to note that the UT Top Ten Program has increased diversity. The reason is that the top ten percent, regardless of school, qualify for the program. This effect is rooted in discrimination in housing patterns that extend back to the late 19th century when, first, Jim Crow laws were passed in the southern states (such as Texas) to essentially re-enslave and disenfranchise the freedmen. Many people will be surprised to know that these laws continued in force well into the 1960s, the last case being brought to overturn the last vestiges of the race laws in the mid-1970s. Then in the north beginning in the 1920s, first, local ordinance, and then, when those were struck down, restrictive covenants were applied to keep African Americans and other minority and ethnic groups out of white, Anglo-Saxon protestant neighborhoods. When restrictive covenants were eventually overturned, real estate brokers and bankers applied the process of “redlining.” That is, home loans and mortgages were made harder to qualify for or denied to certain racial and ethnic groups. The map was lined in red to keep people in their “place.” Ostensibly, this practice was outlawed with the passage of the Fair Housing Act in 1968, but the practice has continued to this day. Furthermore, for most of our history African Americans have had to pay a premium for better housing that otherwise would have gone for a lower market price. It was racial fear and manipulation that caused white flight in giving the impression of falling real estate value when African-Americans were allowed to move into a predominately white community. The sordid history behind this phenomena are amply documented in the National Book Award winning history, Arc of Justice by historian Kevin Boyle.
When one hears political and opinion leaders assert that the housing crisis was caused by diversity targets in sub-prime loans they are not only stating a counterfactual and providing bad economic analysis, but are also engaged in race baiting. It is redlining that caused minorities to be most vulnerable when the bubble burst because they tended to pay usurious interest rates–or were funneled into subprime balloon mortgages–in order to derive the same benefits of home ownership as other groups, who were afforded more reasonable financing. Given that most of these are working people living paycheck to paycheck, it takes no great insight to know that they will be the first to default during an unusually severe economic downturn.
Thus, when one considers that most public school funding is derived from real estate property taxes and that the average homeowner based on a 2013 survey stays in their home 13 years (with the historical average varying between 10 and 16 years since 1997), the effects of previously discriminatory practices–and school funding, as well as socio-economic and racial composition–depending the rate of turnover in any particular neighborhood, can last a generation or more. Despite political arguments to the contrary, monies spent on schools plays a significant role in student achievement. It would have been appropriate for Justice Powell in Bakke to have at least acknowledged this history as well as the history of new immigrants and minorities that he invoked in his decision in expressing his concern about turning back the clock.
It is important to state clearly that there is no doubt things have improved despite Bakke, and that it was probably a largely well-conceived adjudication. Despite claims to the contrary, the Great Society and Civil Rights reforms of the 1960s have eliminated the worst de jure and de facto day-to-day indignities, fear of violence, discrimination, and denial of human rights that African-Americans lived under well into the late 20th century. Opportunities have opened up and it is amazing that over the last 50 years that we can find young African-Americans who have never suffered the indignity of bias or discrimination due to the color of their skin. But as with the recent problems in policing, criminal justice, and the subtle racism that exists in job selection and opportunities, among other issues, it is apparent that we still have work to do for us to fully overcome our history of slavery, Jim Crow, racism, discrimination, and racial terrorism. For when one looks back, the fact of the matter is that much of this country–and the basis of its wealth–was built on the backs of African American slavery and oppression. Without the African-American experience, American culture is indecipherable. New immigrants, when taking advantage of the inherited advantages of being American also, unknowing to them, inherit the history that made those advantages possible.
But now back to Justice Scalia’s remarks. Had Scalia restricted himself to the constitutional issues addressed by Powell in Bakke, there would be no concern. But this is not what the members of this SCOTUS are about. In the case of Scalia, his remarks would have been at home in the post-Reconstruction south in the late 19th and early 20th century, along with Spencer’s Social Darwinism and eugenics. This was the period that endorsed separate but “equal” facilities for African-Americans. Scalia seems to be suggesting a modern version of it in higher education. But we have seen these ideas invoked fairly recently elsewhere, particularly in the discredited work of Herrnstein and Murray in publishing their work The Bell Curve. His comments are what is called “Begging the Question.” Scalia “begs the question” in assuming in his remarks that African-Americans are not qualified generally for UT, and that they do not possess the mental or educational skills to succeed there. His remarks also reveal someone who thinks in terms of hierarchy and aristocracy, that there are levels of human fitness and superiority, which also underlies such concepts as “makers” and “takers.”
Apologists in academia and elsewhere have attempted to temper the justice’s words by invoking the concept of mismatch in college admissions. It is often referred to as a “theory” but that would elevate it to have an authority that it does not possess. It is Cargo Cult Social Science based on loosely correlated statistics that provides a veneer of respectability to those who still seek to explain inequality in a society that claims fancifully to be meritocratic, or egalitarian, or a land of opportunity, but which is not really any of these. But that is not the underlying assumption in Scalia’s remarks. He begins with calling out African Americans (and restricts himself to African Americans among minorities) and then goes from there. Further studies on mismatch (link below) show that it is a common phenomenon which affects all racial and ethnic groups. No system is perfect, and especially not one conceived by society or academia.
But even putting aside the racist assumptions of Justice Scalia, does the mismatch concept even pass the “so-what?” test? What if one is thrown into a situation for which they are poorly prepared? In real life we call this “sink or swim.” Does it really do harm? There are all kinds of casuistry put forth but, despite assertions to the contrary, the facts are not conclusive.
To give but one famous historical example that undermines this bit of sophistry, the fact that General Lee graduated second in his West Point class and U.S. Grant graduated in the bottom half no doubt influenced them later in life. Lee was able to defeat with great skill generals who were unused to defeat and disappointment, and routed them from the field. But his supreme confidence in his abilities caused his utter failure at Gettysburg. Grant, on the other hand, who experienced failure both as a civilian and on the battlefield, grew unafraid of it and succeeded in the end. The fact that someone experiences a setback or must work hard in order to succeed is not such a bad thing. It is how the individual reacts in the face of disappointment or long odds that we call character. It is the standard means of training Naval officers at sea and why mentoring is so important. (Only puffed up college professors don’t feel that their job is teaching). Yes, the world is a big place; yes, there are things you don’t know, but absent a severe learning or emotional disability you can learn them.
But seeing this self-evident insight would assume rational thought and evidence. For example, many of the characteristics attributed to African-Americans in The Bell Curve have since been overcome, such as significantly rising math and reading scores on standardized tests that are closing the gap with white achievement. If these were innate or unsolvable deficiencies how was it possible that public policy is alleviating the gap? Does it harm African-Americans to be challenged to do so? Given the disreputable history of race in America what is more likely: that African-Americans are innately less likely to succeed at UT (and increasing numbers entered under the Top Ten Program), or that the history of unequal educational opportunity deserves to be addressed in the most equitable and constitutional manner? Or that unequal treatment and the socio-economic effects of economic discrimination, which still exist, have a great effect on minorities that require a reasoned assessment of the individual in taking into account mitigating circumstances, including racial or ethnic background, in college admissions for those on the fence?
That a Supreme Court justice can voice such stupidity and bias in the year 2015 is evidence enough that there is something wrong with our judicial system. I beg to differ with the proposition voiced by the late Senator Roman Hruska in defending Nixon’s appointment of G. Harold Carswell to the Supreme Court (which was rejected), that mediocrity deserves representation on the court. While we can’t always find a Brandeis, Cardozo, or Frankfurter (or a Holmes, Brennan, Black, Story, or Warren), we can at least attempt to do so. Unfortunately we are stuck with a Scalia and his ilk.