Supreme Court Justice Antonin Scalia is quoted in the December 10 edition of the New York Times as saying: “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.” He went on to say that perhaps UT Austin “ought to have fewer” blacks. (Here’s the full transcript.)
At the time, I was asked to sign a petition for the impeachment of Justice Scalia based on these remarks, which he made as the two sides gave oral arguments in Fisher v. University of Texas, the affirmative action case currently before the Supreme Court. The petition claimed his remarks were racist. Certainly, they were provocative.
The question the petition raises in my mind is whether it is possible to talk about controversial issues involving race without raising suspicions of bigotry. In this essay, I approach the question from my past experience as a disabled student.
The Times article is entitled, “With Remarks in Affirmative Action Case, Scalia Steps Into ‘Mismatch’ Debate,” and I’m proceeding on the premise that he was making a “mismatch” argument. Advocates of this theory contend it can be harmful to admit students based on race if they are not adequately prepared. The reporter, Anemona Hartocollis, explains that the affirmative action policy of the University of Texas at Austin “supplements the automatic admission of top-ranking students from all high schools across the state with the use of race as one factor in a ‘holistic’ approach to admissions.”
Several people who read early drafts of this essay construed my question differently from what I intend, no doubt partly because I wasn’t clear enough, but also, I think, because we bring assumptions from all sides to conversations about race. These lively discussions have made me even more aware than I already was of how hard it is to speak and write with clarity. Clarity isn’t only about simplicity and logic, but also ensuring that only what is meant to be said is actually said.
So let me say at the outset that I have neither statistics nor an opinion either way on the performance of African-American students before and during college. This essay is not about that subject, but whether we can talk about it.
For disabled people, preparation for college is key. In high school, I was fortunate to have teachers who pressured blind kids to learn braille and acquire other skills to compensate for the inability to read print. I was equally fortunate to attend a high school that offered Advanced Placement courses taught by some very good teachers, and still more fortunate to have had parents who had the time and inclination to provide me with moral support and practical assistance. These were advantages I undoubtedly had over many other disabled students, as well as so many other students—black, white or otherwise.
Yet even my preparation was sometimes questioned. At the age of fourteen, when I attended a summer session at a school for the blind to improve my braille, typing and other adaptive skills, the school’s year-round students liked to tell me that in public schools, teachers would give blind students good grades out of sympathy. I met some great kids that summer, but most were not academically-minded. Of course, I couldn’t say that. I didn’t even feel comfortable thinking it. But it’s difficult to believe that an eighteen-year-old ninth grader is college material. Yet there we were, public school and residential school students, each believing the others were being poorly prepared for the next level.
Then, in my high school senior year, a classmate told people I’d been admitted to some elite colleges even though I wasn’t qualified, and I naturally wondered if others quietly harbored similar suspicions.
At that time, the late sixties and early seventies, educators weren’t so hamstrung by political correctness. My application to Amherst College was met with some skepticism based on concern about how I would obtain my course materials in a form I could read. I might have had difficulty answering if it hadn’t been for the Darien Community Association, whose volunteers recorded course texts on request, and Westport’s Connecticut Braille Association, whose volunteers transcribed several foreign language textbooks and books of poems. There was also the national Recordings for the Blind, as Learning Ally was then called. Eventually Amherst admitted me. Still, I wondered if, despite Amherst’s practical misgivings, blindness had been a factor in my favor. It undoubtedly played a role, for good and bad, in my later academic and legal careers. Sometimes it generously disposed people toward me; sometimes preconceptions got in my way.
No one in the field of education of disabled children would quarrel that disabled kids with hopes of attending college need preparation. To say so isn’t discriminatory. It’s a fact of life. Why, then, can it be problematical to make a similar claim for African-American kids?
It’s hard for one who believes in equality to accept any theory that would curtail opportunities for anyone based on race. It’s even harder when you have had good and productive experiences working alongside African-Americans, as I have. I do believe that many African-Americans have been disadvantaged. I also believe that for America to reach its potential and not be forever held back by racial discord, the kind of admissions plan that UT Austin has implemented is essential.
Viewed in a positive light, the “mismatch” theory presumably relies on such familiar predicates: that black children suffer from discrimination, that the black family structure has never fully recovered from the damage inflicted during slavery and that it has been further weakened by discriminatory drug laws and prison sentences, and that many blacks live in low socio-economic settings where schools aren’t adequately funded. I subscribe to all these explanations. Then there are the commentators, such as Charles Murray, who allow, if not exactly contend, that African-Americans might be intellectually inferior.
In fact, some African-Americans share misgivings about affirmative action. They are usually labeled “conservative,” and they have found their most prominent voice in Scalia’s African-American colleague on the Supreme Court, Clarence Thomas. The two men often find themselves on the same side in court decisions. In the August 23, 2011 edition of The New Yorker, Jeffrey Toobin explains why Thomas has denounced his Yale law degree:
In his book, Thomas recounts his difficulties finding a job after Yale, which he attributed to ‘what a law degree from Yale was worth when it bore the taint of racial preference.’ In light of this, he wrote, ‘Yale meant one thing for white graduates and another for blacks, no matter how much anyone denied it …’
Disabled people expressing such sentiments about how they’re perceived would risk accusations, couched as diagnoses, of self-loathing. Likewise, there are those who would react to this passage by calling Thomas a self-hating black, or some such thing. (In 2003, commenting on a dissent in an earlier case, Maureen Dowd called him an “angry, bitter, self-pitying victim.”) But my own experiences cause me to empathize, up to a point, with Thomas’s suspicions.
I don’t wish to overstate this comparison. Above all, I don’t share Thomas’s hostility to programs designed to compensate for historical injustice and deficiencies in early education. However, while there’s nothing wrong in criticizing Thomas for his conclusions, it’s unfair and insensitive to dismiss his perceptions so glibly, even insultingly.
It’s important to recognize that blacks and disabled people aren’t the only beneficiaries of special consideration by college admissions offices. There are the children of alumni and the relatives of big-time contributors. There are the students from distant locales, such as Wyoming or Greece, admitted in the name of geographic diversity.
It seems to me that a fallacy in affirmative action cases is that the white student was denied admission because of preference to a less qualified black. Actually, that student didn’t lose her place specifically to a black student. It’s highly doubtful that anyone in the admissions office said, “Out with that white person, in with this black one.” Instead, her application was rejected after many, many people, including sons of alumni, daughters of rich parents and sports scholarship awardees, were taken before her. I’m confident that some of these students, many of them white, were less prepared than some supposedly unprepared black applicants.
So again, why is it unacceptable to raise concerns about preparation when it comes to African-American students? One reason, surely, is our resort to code. We are long since past the days when prejudice was flouted. Open displays have been replaced, or more accurately disguised, by “code” words and concepts. An example is the groundless claim that President Obama wasn’t born in this country and, therefore, isn’t a citizen. He “isn’t one of us,” some critics said.
So it is with reason that advocates of programs such as affirmative action see prejudice whenever they encounter resistance. Yet those who advocate better preparation don’t necessarily come from a racist place, any more than proponents of similar programs for disabled students feel hostility toward the disabled. It ought to be possible to ask whether some African-Americans, in light of demonstrable historic and present-day disadvantages, would benefit from better preparation before attending a prestigious university. To ask isn’t to endorse. Nor does it stop others from arguing that African-Americans are as prepared as any other group or that the failures of our primary education system require colleges to take on the task of promoting equality, such as by offering remedial courses.
Racists who hide behind the mismatch theory should be ashamed, but their deception should not be allowed to derail discussion among people of goodwill. Indeed, expressions of concern about academic preparation could conceivably be a useful contribution to the debate. After Scalia’s remarks, opponents are now in a better position than ever to counter what might otherwise be an unspoken assumption among some members of the judiciary.
Here I’m echoing Justice Louis Brandeis’s practical argument for free speech “that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies” (Whitney v. California, 1927). To see Brandeis’s argument in action, see Geoffrey R. Stone’s 2009 article on the 1977 decision to let self-proclaimed Nazis march in Skokie, Illinois.
No question, a Supreme Court justice has an obligation to take great care when making public statements, and Scalia’s poorly-chosen words can be criticized on those grounds. Still, it is unhelpful to call him a racist based on these remarks alone. Actually, his words could be construed as an unintended argument for UT Austin’s admissions policy. If his claim of inadequate preparation is valid, it is an indictment of our education system. That should be what is vilified.