On Wednesday, in Fisher v. University of Texas—a case about a white woman who believes she was denied admission to the University of Texas because less-qualified blacks were admitted instead via affirmative action—Antonin Scalia, a U.S. Supreme Court justice, challenged the attorneys defending the University of Texas by openly questioning whether blacks who are admitted to quality, top-tier schools actually suffer because the courses are too advanced.
He then pointed out that most black scientists and engineers do not come from schools like the University of Texas. Said Scalia:
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. One of the briefs pointed out that 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 being pushed ahead in classes that are too fast for them … I’m just not impressed by the fact the University of Texas may have fewer [blacks]. Maybe it ought to have fewer. I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.
This happened. In 2015. Out of the mouth of a U.S. Supreme Court justice. Can’t make this stuff up, folks.
It would be easy to say how much I’m “unable to can anymore” after this, and though I actually cannot unpack everything here, I will share some preliminary thoughts. As to Justice Scalia, consistency is as consistency does. Scalia has proved repeatedly that he is among the most conservative minds on the judiciary, and save for the comments he delivered with regard to the purpose and function of the grand jury after Darren Wilson was not indicted in Ferguson, Mo., there is little redeeming what many in our community might take from his tenure on the high court—particularly as it relates to issues that matter most to us, like affirmative action.
Of course, his insinuations in Fisher are insulting, but perhaps not for the reasons you might think. On the surface, the comments do strike as repugnant. Granted. However, what is most alarming is that while his statements may bear some level of statistical truth, they are absolutely worthless outside of historical context. You cannot put people who have run barefoot in dirt fields their entire lives on the same track as those who have been sponsored by Nike in world-class facilities since birth and expect that to be an even race or competition. That the former are even in the race is an accomplishment of its own.
This is what his commentary fails to consider or to illuminate. The socioeconomic conditions that lead to disparities in education from grade school forward are the missing context that make Scalia’s comments unfair and his insinuations unjust. None of this considers the greatest point of irony in the discussion, which is that the petitioner, Abigail Fisher, actually lacked the academic credentials to be admitted to the school.
Not just that, but does the math or physics being taught at Prairie View A&M or Texas Southern involve a different system of numbers than what is used at the University of Texas? Even in considering the appropriate context through which Scalia would make such a statement, that in no way “proves” that blacks who attend “better” or “more advanced” institutions of higher learning cannot somehow succeed because of the speed of the classes. They are learning the same subject matter. There are myriad other arguments to make here—still waiting for Scalia and others to express their disdain for legacy clauses that serve as reverse affirmative action at many of these same institutions—but the point is, he’s got it dead wrong. Again.
Beyond Scalia, however, my thoughts are to everyone who will read or hear Scalia’s comments. Do they upset you? Do they make you angry? Good. They should. My bigger question, the one that really matters, is, what will you do with your frustration? Writing some short quip or expletive on social media ain’t gonna get us free. We must understand the system.
Supreme Court justices are appointed by the president and confirmed by the Senate. So are federal judges.
We elect both the president and senators. Those who are seeking your vote need to be able to articulate for you their philosophy on issues like these, reproductive rights for women, crime and punishment, and a host of other issues. Law affects every aspect of life. Therefore, it is an imperative not only that the judges we elect reflect our values as a community—whatever those may be—but also that those values are reflected through the appointments and choices that those officials make when filling federal judicial vacancies (of which now there are several).
We can allow thinking like Scalia’s—hardly uncommon at other levels of the judiciary as well (which is perhaps equally troubling on its own)—to upset and enrage us, or we can get in the game and use that frustration to fuel real activism and to promote awareness and further engagement. Our future is not a sideline sport. Regardless of what you think about #affirmativeaction, access to space matters. Equal access. Our world is changing before our very eyes, and I’m deathly afraid that too many of us are missing it.
Charles F. Coleman Jr. is a civil rights trial attorney, legal analyst and former Brooklyn, N.Y., prosecutor. He is also a professor of criminal justice at Berkeley College in New York. Follow him on Twitter.