Where Justice Scalia got the idea that African Americans might be better off …

10 Dec 2015 | Author: | No comments yet »

Amid protests, justices hear UT admissions case that could end affirmative action on campus.

WASHINGTON — Affirmative action challenges tend to be among the most complex, messy, statistics-laden and emotionally charged cases that land before the U.S.WASHINGTON — The University of Texas was once again in front of the Supreme Court defending its use of race as a factor in a small portion of admissions decisions when Justice Antonin Scalia made an observation. “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,” Scalia said “Most of the black scientists in this country don’t come from schools like the University of Texas,” he said, attributing the statement to a friend-of-the-court brief filed in 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.” Those comments alarmed some who were on hand to watch the arguments in the case, the second time in two years that the high court has scrutinized UT’s unique admissions process. Most students are admitted to the university through a plan that guarantees slots to Texans who graduate in the top 10 percent of their high school classes.

Critics of mismatch theory though argue that it ignores the fact that elite and selective schools are more well-equipped to assist struggling students. Abigail Fisher, the woman who initiated the case when she sued UT after being denied a place in the 2008 entering class, said she hopes her case puts affirmative action out of business nationwide.

But Kennedy has also been reluctant to say race may never be used, and on Wednesday he seemed less convinced than the court’s other conservatives that he had all the information needed to pass judgment on UT’s program. Kennedy seemed frustrated at the prospect of having to decide the case, which the court largely ducked in a previous encounter in 2013. “We’re just arguing the same case,” he said. “It’s as if nothing had happened.” The case, Fisher v. At times, he wondered about ordering another judicial examination of whether UT’s program has had the success it claims; at others, he seemed to think even that would not make the decision easier. Supporters though say that Scalia’s comments were taken out of context and he has been wrongly painted as racist when he bumbled and invoked mismatch theory, which in itself has been controversial. Al Sharpton attended the oral arguments and said afterward he was “very concerned” when he heard Scalia “suggest that maybe blacks do better at schools that are not as fast as UT.

More broadly, the arguments Wednesday revealed a Court deeply divided over instances in which race could be considered in college admissions decisions. As a black woman who has managed to earn four higher education degrees (one from an Ivy League university) without my head exploding from the exertion, I have trouble seeing Scalia’s view as anything other than poorly reasoned drivel based on bare-faced racial stereotypes. “Oh yeah…?” tweeted Case Western Reserve history and politics professor Peter A.

I didn’t know if I was in the courtroom at the United States Supreme Court or at a Donald Trump rally.” Sharpton added that “in a climate that we’re seeing around the country, for this court to sit up and even flirt with the option that they would limit the fairness … is something that is appalling and something that is extremely concerning to those of us in the civil rights community.” But Carrie Severino, chief counsel for the conservative Judicial Crisis Network and a former clerk to Justice Clarence Thomas, told CNN Scalia wasn’t saying black students are inferior. “What Justice Scalia is referring to is the ‘mismatch theory’ popularized by Stuart Taylor and Richard Sander in their book,” she told CNN. “The idea is that if a student is admitted to a school they are not academically prepared for then they will not perform up to their own potential. Kennedy did not exhibit the impatience and opposition of his colleagues on the right, some of whom questioned the wisdom of affirmative action and wanted specific answers about when it could end.

That part of the program, which accounts for 75 percent of the student body, does not directly consider race but increases racial diversity largely because many high schools in the state are not diverse. Roberts noted half the time was up. “And when do you think your program will be done?” The court’s return to the issue — it considered UT’s plan two years ago and sent it back for additional judicial scrutiny — comes at a time when the country’s racial divide is again on vivid display. In 2009, lawmakers reserved 25 percent of each freshman class for students considered on so-called holistic criteria, rather than the automatic admission under the 10 percent rule. Solicitor General Donald Verrilli Jr., who argued in favor of the Texas plan, said, “What the court is going to say in this case obviously is going to apply eventually to every university in the country.” The last time the court considered the case, in 2013, it avoided giving a direct answer about the constitutionality of the Texas program, and it returned the case to an appeals court for reconsideration.

The 2013 decision, decided by a 7-1 vote, was a compromise, Breyer said Wednesday. “That opinion by seven people reflected no one’s views perfectly,” he said. He said opponents were trying to “kill affirmative action through a death by a thousand cuts.” “What unique perspective does a minority student bring to a physics class?” Roberts asked Garre, a former Bush administration solicitor general. Justice Elena Kagan, who usually votes with the liberals, recused herself from the case, presumably because she worked on the issue when she was President Obama’s solicitor general.

Are we going to hit the deadline?” “Your Honor, I’m not here to give you a date,” he said. “But what I would say is this: There are systematic problems that these policies are attempting to address. The justices at the time told the lower court to apply the kind of rigorous evaluation that must accompany any government action that considers race. “Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice,” Kennedy wrote in 2013. He suggested Wednesday that perhaps the court still did not have enough facts about how the university’s program worked and wondered whether there should be a trial at the district court level, which has not happened. In a 2-to-1 vote, the panel concluded for a second time that the university’s limited consideration of race was “necessary” and narrowly tailored to meet the university’s compelling interest in achieving diversity. She contends the university’s attempts to boost the number of African American and Hispanic students cost her a spot. (The university says she would not have made the cut regardless.) She subsequently graduated from Louisiana State University.

For the remaining slots, the university uses a “holistic” evaluation of applicants that includes race as one of many considerations, including leadership, obstacles overcome and socioeconomic factors. Without considering race, he said, those admissions would become an “an all-white enterprise,” resulting in “glaring racial isolation” for other UT minority students. Verrilli Jr., representing the Obama administration, said courts should defer to university leaders, who are practically united in building diverse campuses.

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