It was the oral argument question that launched a thousand progressive blog posts. "Scalia: Black Students Don’t Need Affirmative Action Because They Benefit From A ‘Slower Track’ blared Think Progress," and Mother Jones chimed in with "Justice Scalia Suggests that Black Students Belong at Slower Colleges." The Hill joined the chorus with "Scalia: Maybe black students belong at less advanced schools."
These reports came out before the transcript of the argument was published on the Supreme Court's website. When it was, it became clear that Scalia was only asking the University of Texas's lawyer to respond to an argument made in some of the amicus curiae briefs filed in this case (see pp. 66-67 for the relevant exchange; I also attended the argument in person and will vouch for the transcript's accuracy.) As noted in this Mediate piece, it is common for judges to ask lawyers to comment on positions that they don't actually hold. This practice lets the judges test the strengths and weaknesses of different arguments. It leads to better deliberations and more well-reasoned opinions.
But even if Justice Scalia were one of those who believed this theory, would it be so dreadful?
I understood Justice Scalia's comments to be referring to what is generally called the mismatch critique of affirmative action. Mismatch refers to the loss of learning that occurs when a student is placed in a setting where her credentials are below those of the median student. That is, most of us learn more when we are surrounded by peers whose background in a subject is similar to our own than we are surrounded by a group too far ahead of us. Outside the racial context, this phenomenon is ordinary and unobjectionable. The basic concept is unlikely to shock anyone who has ever been a student, a parent, or an amateur trainer of golden retrievers (and certainly not those of us who have been all three.)
In the context of race-based affirmative action the question is: are racial preferences big enough that their intended beneficiaries commonly learn less at college than they otherwise might? The brief* that Justice Scalia was citing—filed by Gail Heriot and Peter Kirsanow, two members of the eight-member Commission on Civil Rights**, in their personal capacities and not on behalf of the Commission as a whole—points to a raft of empirical studies suggesting that the answer to this question is yes.
Heriot and Kirsanow rely on the published scholarship of Rogers Elliott of Dartmouth, Richard Sander of UCLA, and Peter Arciadiacono of Duke, among others. Further, they note that legacy students—students who receive preferential treatment in admissions because they had a relative who attended that college—also generally experience mismatch the same way that minority students receiving preferential treatment do.
Just so that the point is crystal clear, every serious proponent of mismatch theory thinks that there are African-American students who can and will flourish at the nation's most selective colleges and universities. There are zero proponents of mismatch theory who would channel all African-American students to nonselective colleges and universities. The claim is only that too-big admissions preferences channel too many students to colleges that are ultimately the wrong fit.
While some of the over-the-top attacks of Scalia's question are regrettable, I nonetheless view it as a positive development that mismatch is getting the attention it deserves from a Supreme Court justice. Even if mismatch plays no role in the resolution of Fisher's case, the flurry of media attention about Scalia's comments will likely cause some readers to learn more about the arguments for and against the underlying theory. Public pressure to abandon very large preferences may accomplish more than the Court could.
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*There was another very fine brief on mismatch and affirmative action filed by UCLA law professor Rick Sander and journalist Stuart Taylor, who are also authors of a comprehensive book on the subject. But it appears that Scalia was referring to the Heriot-Kirsanow brief specifically because he mentioned data concerning historically black colleges and universities that appears in Heriot-Kirsanow but not Sander-Taylor.
Justice Scalia noted the extraordinary successes of historically black colleges and universities in graduating scientists and engineers. Because science and engineering tend to be the hardest majors on many campuses, students who are mismatched because of admissions preferences are especially likely to switch out of them into something easier. Because historically black colleges generally don't use admissions preferences, their students are less likely to be mismatched and are hence more likely to persist in science.
Strangely, this chart was circulated on Twitter and by various progressive bloggers to discredit Heriot-Kirsanow's argument about HBCUs. The chart lists the top 50 baccalaureate-granting institutions to African-American science and engineering doctorate recipients. The top eight schools on it are all historically black colleges, finishing ahead of far more selective Harvard University at #9. It actually confirms Heriot-Kirsanow's argument more than it refutes it.
**I am Gail Heriot's special assistant and counsel at the Commission on Civil Rights. I have assisted Gail with various other projects pertaining to mismatch and university admissions, both in and out of the Commission, including briefs filed earlier in the Fisher litigation. I was not involved with this particular brief.