There he goes again. Last week Justice Antonin Scalia spoke plainly on his misgivings about affirmative action. Afterwards, his commentary was a constant subject at holiday cocktail parties in Washington, DC where I live. Abigail Fisher’s case challenging the University of Texas’ use of affirmative action was back before the Supreme Court for the second time in three years. At the oral argument, to audible gasps, Scalia clumsily engaged in “mismatch theory,” speculating that African-American collegians would be better off attending “less-advanced,” “slower-track” schools where they might achieve more because classes are not “too fast for them.”
Since then several commentators have cited extensive social science research discrediting this theory. The evidence points to the exact opposite of Scalia’s intuitions. For students of all backgrounds, graduation rates and long-term success improve with the selectivity of the college they attend. More importantly, as I argued in Place, Not Race, affirmative action candidates, with their lower standardized tests scores, have been found to come closest to meeting universities’ professed mission statements about cultivating leaders who use their educations to give back to society.
What is most troubling about Justice Scalia’s statements is not his inferiorizing of black students, but the fact that he was privy to considerable counter evidence cited in amicus briefs. Yet he chose to side with the discredited theory that fit his worldview. His statements in other cases involving race and civil rights reveal impatience, if not resentment, on his part about efforts to remedy racial discrimination.
At an oral argument in a case involving the Voting Rights Act, in which the Court ultimately freed Shelby County, Alabama and other jurisdictions mainly in the former Confederacy from having to seek “preclearance” from the federal government for election law changes, Scalia described the preclearance provision as a “racial entitlement.” He suggested that the Court needed to help Congress avoid the trap of being afraid to vote against a “racial entitlement.” “Even the name of it is wonderful,” he continued, “the Voting Rights Act. Who is going to vote against that in the future?”
These statements also produced audible gasps in the court room and they should have. Despite a 15,000 page legislative record demonstrating pervasive, intentional racial discrimination by jurisdictions covered by the pre-clearance provision, especially in Alabama, Scalia chose to view Congress’ chosen method of protecting minority voters against such discrimination as a racial entitlement. Judges are supposed to set aside their personal views, their public policy preferences and follow the ways of the scholar, exercising detached judgment, not political will. Scalia seemed to have prejudged the issue and did not engage with copious evidence that challenged his personal views.
Those views were long-held. Decades before, when Scalia was a law professor, he used this term “racial entitlement” in a 1979 commentary about affirmative action. He argued back then that affirmative action was “based upon concepts of racial indebtedness and racial entitlement rather than individual worth.” For him, the flip side of “racial entitlement” is “racial indebtedness,” and that, he said, made affirmative action policies “racist.”
As Justice Scalia, he repeated this logic in a 1995 Supreme Court opinion, Adarand Constructors v. Peña, striking down the federal government’s affirmative action program in government contracting: “Under our Constitution there can be no such thing as either a creditor or a debtor race,” he reasoned. Herein lies the crux of Scalia’s errant thinking about our Constitution’s guarantee of “equal protection of the laws.” This provision, ratified in 1868 in the wake of a civil war fought to end slavery, was designed by Radical Republicans to overturn the Dred Scott decision and force states to stop denying full citizenship to newly freed slaves. It would be hard not to consider race in that context. However, Scalia, the avowed originalist, never invokes the original intent of the radical drafters of the Fourteenth Amendment when called to interpret it. Instead, he falls back on his own theory that the Constitution cannot allow for race-consciousness because it would make debtors of individuals like Abigail Fisher.
This is more politics than law. Indeed, Scalia’s arguments and his unsubstantiated claims about black students are of a piece with what many political opponents of affirmative action have to say about it. White resentment about the policy and the lawsuits and political bans it produces is the main source of its decline. In Place, Not Race, I argued for radical reforms in college admissions that would promote social cohesion and robust diversity in a way that would actually help African-American descendants of slavery, those who suffer the wages of segregation. I took pains to clarify, however, that my arguments originated in public policy, not the Constitution. The Fourteenth Amendment does not require so-called color-blindness. Unfortunately, Justice Scalia seems to allow his personal biases to blind him to empirical evidence, even when it is staring him in the face.
About the Author
Sheryll Cashin, professor of law at Georgetown University, is the author of The Agitator’s Daughter and The Failures of Integration. Cashin has published widely in academic journals and print media and is a frequent commentator on law and race relations, having appeared on NPR, CNN, ABC News, and numerous other outlets. Born and raised in Huntsville, Alabama, where her parents were political activists, Cashin was a law clerk to Supreme Court Justice Thurgood Marshall and served in the Clinton White House as an advisor on urban and economic policy. She lives with her husband and two sons in Washington, DC. Follow her on Twitter at @.