The Supreme Court heard oral arguments in an affirmative action case with potential nationwide implications on Wednesday, and Justice Antonin Scalia kicked up a shitstorm by suggesting that affirmative action works against black students by helping them get into schools that are ultimately too challenging for them.
Scalia, who has previously opposed of affirmative action, claimed that helping minorities who don't excel at high school get into top colleges "does not benefit African-Americans" because "they're being pushed into schools that are too advanced for them."
"Most of the black scientists in this country do not come from the most advanced schools," Scalia said, referencing information from a friend-of-the-court or amicus curiae brief filed in connection with the case. "They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them."
Scalia contended that minorities would benefit from attending "less advanced" or "slower track" schools, "where they do well," which elicited murmurings in the courtroom. Commenters quickly took to Twitter to condemn the remarks as racist.
Just left the Supreme Court oral arguments on Affirmative Action, the Fisher case. The questioning was disturbing.the tone left me concerned
— Reverend Al Sharpton (@TheRevAl)December 9, 2015
The remarks came as justices heard arguments in Fisher v. University of Texas-Austin, a case brought by Abigail Fisher, a young white woman who claims she was not accepted to the school because it unfairly set aside places for lesser-qualified minority students. She claims the school violated her guarantee of equal protection under the Constitution.
The case highlights the issue of race on college campuses at a time when students are protesting en masse over bigotry and marginalization at their schools.
It's the second time that the Supreme Court has heard the case, which was previously put to the bench two years ago. In 2013, the court sent the case back to the lower court to be reheard after determining it was too deferential to the school, which claimed it had "narrowly tailored" the program to meet diversity goals and constitutionally consistent with the Equal Protection Clause of the 14th Amendment. The Fifth Circuit Court of Appeals reexamined the case and ruled again in favor of the university, putting the case back in the hands of Scalia and the other justices.
Fisher has since graduated from a different school, and lawyers have argued that her claim a moot point since she can never be admitted to the University of Texas (UT) undergraduate program.
Others contend that Fisher's grades and SAT scores weren't good enough to meet school admission standards, regardless of her race. Even conservative activist Edward Blum, who has enlisted several white plaintiffs to challenge race-based policies over the years, has conceded that the case is murky.
'Most of the black scientists in this country do not come from the most advanced schools.'
"There are some Anglo students who had lower grades than Abby who were admitted also," Blum told ProPublica. "Litigation like this is not a black and white paradigm."
While Scalia did not name the particular brief he referenced on Wednesday, his comments were apparently based off arguments made by anti-affirmative action advocates who claim that race-based policies do not work and actually harm minority students.
In one brief for Fisher, two members of the US Commission on Civil Rights, Gail Heriot and Peter Kirsanow, argued that "despite the good intentions" of affirmative action, the policies have failed because "the nation now has fewer African-American physicians, scientists, and engineers than it would have had using race-neutral methods."
Other briefs supporting the University of Texas and its program of race-conscious admissions refuted that idea. The American Educational Research Association (AERA) said multiple studies back up claims that promoting diversity benefits all students, not just minorities.
In the courtroom on Wednesday, the university's lawyer, Gregory Garre, later made an inadvertent dig at Scalia's comments, hinting that they amounted to support of a system that would segregate students.
"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," Garre said.
Justice Elena Kagan recused herself from the case earlier this year, so it will be decided by the eight remaining justices. with the deciding vote likely resting with Justice Anthony Kennedy. Kagan's decision not to weigh in on the case stems from a conflict created during her days as Solicitor General, when the Justice Department filed an amicus brief in the case.
Follow Liz Fields on Twitter: @lianzifields