THE BLOG
12/15/2015 10:35 am ET Updated Dec 15, 2016

The Story Behind Justice Scalia's 'Slower-Track' Remarks

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In the days since U.S. Supreme Court Associate Justice Antonin Scalia endorsed the idea that African Americans might do better attending "slower-track schools," Senate Minority Leader Harry Reid has denounced the justice's comments as endorsing "racist ideas from the bench of the nation's highest court." Reid went so far as to say "the only difference" between the ideas endorsed by Donald Trump and Justice Scalia "is that Scalia has a robe and a lifetime appointment." While there is a lot of truth to Senator Reid's observation, many legal scholars are acutely aware of a very significant difference between the idea Justice Scalia endorsed in a case about racial affirmative action in college admissions and recent statements by Donald Trump. While Trump's horribly divisive, discriminatory, and un-American remarks are of his own creation, the comments made by Justice Scalia are the re-articulation of a scholarly theory that has been posited and supposedly "proven" by a set of anti-affirmative action experts.

There have been many prior "expert" voices of the mismatch theory such as former University of California Regent Ward Connerly and staunch opponents of racial affirmative action like the husband and wife academic team--Abigail and Stephan Thernstrom. Mismatch experts attest (apologetically they contend) to the existence of a sad secret side-effect of racial affirmative action--that it harms African Americans and other people of color by admitting them to colleges that are out of their intellectual league where they earn lower grades and learn less than they would at less-elite institutions. This is the story behind Justice Scalia's comments. Justice Scalia just stripped the mismatch hypothesis down to its barest essential when the justice said that Blacks are better off when they "go to a less-advanced school" because, as Scalia continued, "they come from lesser schools" making the classes at top-ranked colleges "too fast for them."

As a legal scholar who has written about the untenable presumptions underlying the hypothesis of "minority mismatch," I have found this week's public outcry against the theory to be refreshingly direct. Unlike academic critics of mismatch who apply murky legal tests to analyze this theory, Americans have quickly applied a simpler test to the "mismatch hypothesis"--if it looks like a duck, swims like a duck, and quacks like a duck, it's a duck. They have concluded that the mismatch hypothesis is an old and essentially racist idea that cannot be proved or disproved because it depends on many variables that could never be measured with scientific certainty. Still, they are denouncing the theory, I think, because it is so clearly inconsistent with the American ideal of social and economic mobility, irrespective of one's race. It harkens back to an era of state-imposed racial segregation to have a Supreme Court justice say, as Scalia said, that the University of Texas "maybe ought to have fewer" Black students.

Interestingly, the most famous modern expert to promote this "mismatch hypothesis" and author of a book named after the idea, UCLA law professor Richard Sander goes farther than being simply apologetic in relaying his unpleasant message that most Blacks would fare better in life if they went to lower-ranked colleges. Professor Sander invokes personal autobiographical details (details of a sort not typically present in professional research of this type) to insulate himself from the type of backlash Justice Scalia has experienced by articulating the crux of the theory. In other words, to avoid the charges of racism unleashed against Justice Scalia's remarks, Professor Sander has written in his scholarly articles, "I am white and I grew up in the conservative rural Midwest," "I worked as a community organizer on Chicago's South Side," and "my son is biracial, part black and part white." It could be said that Professor Sander has brought a fresh (self-attested white liberal) face to the idea of "mismatch." The legal academy, media outlets, and several justices of the Supreme Court have responded with great favor to his empirical-driven studies. However, they rarely give equal time and attention to the much larger contingent of experts who have criticized the assumptions, research methodology, and legal significance of Sander's modern mismatch studies.

Scalia was asking the attorney for the University of Texas to comment on the counterintuitive mismatch hypothesis because Professor Sander and others make it their regular business to file briefs in racial affirmative action cases informing the Supreme Court that their research shows that top universities actually hurt African American students when it sends them an acceptance letter. Not mentioned by Justice Scalia were the studies of numerous legal experts who view the mismatch theory as merely a statistically complex pretext for excluding racial groups who have historically been excluded--a fancy intellectual veil for the old-fashioned American tradition of keeping people of color in their proper place supposedly "for their own good." As it relates to the idea endorsed by Justice Scalia, the disagreement among experts boils down to far more studies that disprove the mismatch hypothesis than those that purport to prove it. Yet, Supreme Court justices like Scalia (and Justice Roberts, as expressed in his comments during oral argument two years ago in a case upholding Michigan's anti-affirmative action law) seem far more interested in the studies supporting mismatch than highly regarded studies rejecting the idea, including a major one called The Shape of the River authored by former Harvard and Princeton university presidents William Bowen and Derek Bok.

Bowen and Bok's study strongly contradicts the mismatch hypothesis that Black students' GPAs are more important than the reputation of the college they attend. Bowen and Bok, like many statistical and education experts, found that students of color graduate from more "elite" schools at higher rates than they do if they attend lower ranked (predominantly white) colleges. Far from harming students of color, the extensive study by the university presidents reached a conclusion that is no surprise to most people and consistent with the vast majority of studies on the issue. They found that racial affirmative action benefits people of color. Admission to elite colleges and universities has offered people of color the opportunity to enter and excel in echelons of American society that have previously been virtually exclusive domains of white men.

Ultimately, the degree to which graduating from a more elite university serves an individual student better than graduating with a higher GPA from a less-elite institution is probably the kind of esoteric question that only professors would debate for as long as we have. Like high school students of any race who hope to attend their "dream college," African American students want to decide for themselves whether to attend that school if they are fortunate enough to be admitted. Expert research has long discredited the exclusionary idea driving Justice Scalia's comments. Over the past several days, much of the nation has rejected the idea as well.