Cartoon by Rob Tornoe
Cartoon by Rob Tornoe

WASHINGTON — Do black students matter to Justice Antonin Scalia?

During oral arguments on Wednesday in Fisher v. University of Texas, a contentious affirmative action case, the conservative justice seemed to call their abilities into question.

“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,” Scalia said, “as opposed to having them go to a less-advanced school … a slower-track school where they do well.”

Scalia was engaging former U.S. Solicitor General Gregory Garre, who is now representing the University of Texas at Austin as the school defends its ongoing consideration of race as one of many factors in its admissions program.

Pointing to a brief the court received before oral arguments, Scalia noted “most of the black scientists in this country don’t come from schools like the University of Texas.”

Garre tried to interject, but the justice continued. “They come from lesser schools where they do not feel that … they’re being pushed ahead­­ in classes that are too fast for them,” Scalia said.


Again, Garre tried to respond as Scalia added that he was “just not impressed” by arguments that UT Austin suffers from lower minority enrollment. “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,” the justice said.

By then, Garre’s time at the podium was almost up, but he closed his rebuttal to the justice by emphasizing the importance of diversity on campus.

At what point do people like Antonin Scalia come to realize that you just can’t say whatever is on your mind?  For him, probably never.  Scalia is insulated.  He is appointed for life and can say and do whatever he wants.   There are no consequences.

These Scalia remarks seem to creep up from the past, spoken out loud from another era, when we as a people could address those of other races as second class citizens.  I might have expected to read remarks like these when I was a child.  I heard things like that all the time.  In fact, not only were similar words used about blacks but also about women who wanted admission to some of the finer schools in the area.

The message that was sent to me, as a girl, was to lower my expectations.  Society simply didn’t have the same expectations of me because gender.  The same message was sent to black kids my age.  Why even bother.  The doors are closed.  The doors are also closed to young people whose parents have immigrated here without proper documentation.  It isn’t the kids fault but the same message is sent to them.  Don’t bother to try because the doors are also closed to you all.  Hispanics need not apply.

The woman issue has been fixed, perhaps with a vengeance.  There are more women than men enrolled in colleges and universities nationally.  I thought that black students had equal opportunity to attend college.  It appears they won’t if Scalia has his way.  I guess that leaves the poor Dreamers to have that unfulfilled dream for education and career.  I will certainly stand up and fight for them.  Will YOU?

31 Thoughts to “Justice Scalia: When does spoken bigotry end?”

  1. Steve Thomas

    This is a drive-by post, based on drive-by media reporting, taking the Justice’s opinion completely out of context. Scalia was referencing almost verbatim a study that was presented as part of both written and oral arguments :

    1. Its more than drive-by. You just don’t say what he said. Period. It’s offensive.

  2. Cargosquid

    “At what point do people like Antonin Scalia come to realize that you just can’t say whatever is on your mind? For him, probably never. Scalia is insulated. He is appointed for life and can say and do whatever he wants. There are no consequences.”

    Moon, at what point do you stop with the knee jerk acceptance of liberal spin and attack pieces?

    Scalia’s question came after a lawyer for the University of Texas argued that ending affirmative action would lead to a decrease in black students. To that end, asking about a brief the court had received arguing that would be a good thing doesn’t display insensitivity, it shows good judicial instincts.

    As it happens, Scalia was pretty accurately citing a brief filed by two members of the U.S. Civil Rights Commission. They point to a study showing that black scientists are much more likely to have graduated from historically black colleges, even though those schools are less academically stringent than elite universities:

    With only twenty percent of total black enrollment, these schools were producing forty percent of the black students graduating with natural science degrees, according to the National Science Foundation. Those same students were frequently going on to earn Ph.D.s from non-HBCUs. The National Science Foundation reported, for example, that thirty-six percent of the blacks who earned an engineering doctorate between 1986 and 1988 received their undergraduate degree from an HBCU.

    Why have HBCUs been so successful? [The authors] believed that unlike at mainstream institutions, African-American students at HBCUs were not grouped at the bottom of the class. Roughly half were in the top half of the class.

    Scalia isn’t citing some crackpot theory that only these two civil rights officers are worried about, by the way. The “mismatch effect” is a pretty common critique of affirmative action in academia that’s based on pretty hard data. The most prominent book on the subject wasn’t written by cranks, it was written by UCLA and Stanford law professors.


    This effect was also seen when affirmative actions was ended in some schools in CA. Black graduation rates and college membership went UP.

    I think you owe Justice Scalia an apology.

    1. What are you talking about? You seriously have to be kidding me. You just don’t say what he said. You just don’t. You can think it but don’t say it. I don’t care what the background is.

      Owe him an apology? Bwaaaahahahahahaha.

  3. Cargosquid

    You do realize that what he said is a major discussion. He was referring to SOMEONE ELSE’S statements.

    You didn’t read a thing about the article or the background.
    Another case of “skim until offended because a conservative was involved.”

    1. Cargo, he said what he said. I am not debating the case. I basically don’t give a crap. I care what came out of his mouth. What year is this?

      You have no idea what I have read or haven’t read. I must have stepped on one of your pets.

  4. Steve Thomas

    Moon-howler :
    Its more than drive-by. You just don’t say what he said. Period. It’s offensive.

    Sweet Buddha on a rubberbraft! Moon, he was citing a study that was entered as part of one side’s arguments. Did you mention his comments where he said “of course it is good if colleges admit a high number of black students”? No. It’s because, sadly, you are just another zombie consumer of whatever the mainstream is serving up today.

    if the courts become subject to political correctness, we are DONE as a nation of laws. You, who condemns the pc BLM, should know better.

    1. Sorry, there are just ways to say things that are less offensive. I am not even following the case. Its what and how he said what he said. He wasn’t quoting someone else. At best he was paraphrasing. I wouldn’t like it if someone had said that about me.

      I don’t think either you or Cargo have any idea what it is like to be discriminated against because of personal attributes like gender or race. I just don’t think you have a clue. I don’t even support most affirmative action. Maybe it was good in the beginning but now it is over-kill. Its still what and how he said it.

      “Those girls just need to go to a slower tracked school. They don’t do so well with the engineering and math classes.” I know all the rhetoric used for both blacks and women. I lived through it.

      Naturally I don’t understand what it is to be relegated to a lesser school because of race. However, I sure as hell know all about what it was like because I was female. You didn’t apply. There was no chance.

      In a perfect world, race wouldn’t even be on the application nor would gender. Then we would have Boy named Sue.

  5. Starry flights

    Boy, what a bigot Scalia is. All the more reason to vote in November

    1. The words came out of his mouth during a formal legal process. I don’t care what he was talking about. He owns the words. He was speaking in an official capacity. You just don’t say stuff like that…not in todays times.

      There is enough racial tension out there brewing and stirring without Scalia getting into the act. When he says something, it becomes almost codified, for lack of a better word, because of his position.

  6. Cargosquid

    So…let me get this straight….

    Talking about existing studies that show that affirmative action putting minorities into schools for which they are not qualified is racist and bigoted?

    What are talking about?

    Blacks have the opportunity to attend college.
    The problem is that the programs were FAILING them and they were not completing college.

    CA saw their enrollments and graduation rates go up when they cut back on affirmative action at some of their colleges.

    Quotas hurt people. They set up unrealistic goals.
    A survey of selective colleges by UCLA professor Richard Sander documented that students who get in based on race tend to earn lower grades and are less likely to graduate. At less demanding colleges, they’d have a better chance to succeed.

    They’re in over their heads.

    But not in California, which outlawed racial preferences in 1996. Minority students now are more apt to attend lower-ranked public colleges but twice as likely to graduate.

    Gail Heriot, a member of the US Commission on Civil Rights, points to “mounting empirical evidence” that admitting students based on race is “doing more harm than good.”

    That poignant lesson seems lost on administrators at elite universities who boast of large minority enrollments.

    Racial preferences in law school admissions put many minorities on the failure track. At selective law schools, 51 percent of African-American first-year students admitted with racial preferences had grades in the bottom 10 percent of their class, compared with only 5 percent of white students.

    Race has nothing to do with capability. Culture and schools do. If you grant “points” so that you can get in, which allows anyone with a lower score to get in regardless of achievement, they will not be able to compete.

    I’m an A student. If there was a quota for old fat guys at MIT that allowed me to get in regardless of my academic ability….I would fail.

    Colleges are a merit based system, or they are supposed to be.

    Instead of race, perhaps we need a financial affirmative action…that still requires you to meet the entry requirements for a school.

    Should Will Smith’s children be granted a privilege over a smart latino or white kid because of race?

    Should Scalia just rubber stamp the case to satisfy the mob? The racial tension in the air is being pushed by elements of the black population. Screw them. Not because of the race, but because they are being racist and violent and want special treatment. I’m sick and tired of all the special snowflakes that want reality to accommodate them.

    1. You failed to read that I am not defending or castigating affirmative action. I am not arguing the merits of the case. I am talking about what Scalia said and how he said it.

      I can find some study that bears out whatever I want to show. That’s not the point. I have been hearing those old talks my entire life.

      As for your financial affirmative action plan, I think we do that anyway. You also know that undergraduate schools exist for the purpose of supporting the graduate schools. I would like to see college loan interest rates frozen and something done to lower the cost of college. Then there is the text book scam. It is outrageous and immoral.

      Scalia needs to watch what he says, regardless. He simply doesn’t understand that polite conversation has changed over the years.

      I am not a huge proponent of political correctness myself. My grandkids and kids think I am a verbal thug, I believe. I think they are full of it.

  7. Cargosquid

    Scalia was discussing an academic case.

    He merely repeated what the reality shows.

    He said nothing wrong.

    1. In your opinion, he said nothing wrong. Yet you act like I am an idiot because I put up a post on it. Lots and lots of people felt his speech was unacceptable. It really wasn’t just an academic case. You are white washing it. He might have been able to get by with saying not all applicants need to go to top notch schools. That isn’t what he said. He took it about a football field further than it should have gone.

  8. What reality shows? Whose reality? I remember “separate but equal” very well. I lived it. Equal according to whom?

    Actually, the student in question was white.

    Less advanced? Now there’s a way to win friends. We werent’ talking about Harvard.

  9. Cargosquid


    What are you talking about?

    Yes… I know the student in the court case was right. It was a case about discrimination and affirmative action.

    My description was my own scenario.

    There is no “separate but equal” here. No one denying anyone from going to any college. They are pointing out that the current affirmative action plan is flaw and possibly unconstitutional.

    Perhaps we are talking past each other. What, exactly, did he say that you found to be so objectionable?

    Yes….less advanced schools. Are you denying that there are such? Not everyone has the qualifications to get into Stanford, etc….

  10. I am still trying to figure out who Cargo and Steve think that Scalia is quoting. At some point, he has to own what comes out of his mouth.

    I repeat, I am not arguing the merits of the case. I am simply pointing out the inappropriateness of Scalia’s words in 2015.

    This is his colloquy with Washington lawyer Gregory G. Garre, who was representing the University of Texas, according to the transcript provided by the Supreme Court.

    SCALIA: There are — there are those who contend that it does not benefit African-Americans to — to get them into the University of Texas where they do not do well, as opposed to having slower-track school where they do well. One of — one of the briefs pointed out that — that most of the — most of the black scientists in this country don’t come from schools like the University of Texas.

    GARRE: So this Court —

    SCALIA: They come from lesser schools where they do not feel that they’re – that they’re being pushed ahead in — in classes that are too — too fast for them.

    GARRE: This Court —

    SCALIA: I’m just not impressed by the fact that — that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe some — you know, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less. And — and I — I don’t think it — it — it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible. I just don’t
    think —

    GARRE: This Court heard and rejected that argument, with respect, Justice Scalia, in the Grutter case [which said universities may consider race in a limited way because they have a compelling interest in creating diverse student bodies], a case that our opponents haven’t asked this Court to overrule. If you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they — they fare better.

    And, frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools. I think what experience shows, at Texas, California, and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America.

  11. Cargosquid

    But Scalia is doing nothing more than bringing up the findings of other studies. What “words” are you finding to be so objectionable?

    “There are — there are those who contend”
    He is arguing this point based on these reports in order to get the lawyer to present an argument.

    He did not say that this is HIS view.

    1. When it comes out of his mouth, it’s his view. Jesus, how many ways can you spin this?

      He didn’t quote anyone.

      I have given example after example of what’s offensive.

    2. Bottom line, you may agree with him, but that doesn’t make his words any less offensive to people.

      Like I said, I was one of those people who were the children of a lesser brain before affirmative action dragged women into being treated as equals on the educational playing field.

      You, white man, grow up thinking there is a large sub group out there who belongs at a particular institute of higher learning and you don’t because of some attribute over which you have no control. Seriously, maybe you have never been in the position of feeling that way because of artificial barriers. I have. It was very real and you set your sights accordingly.

      Maybe this is just something that white men don’t understand. Scalia’s words were insulting and hurtful. I don’t even support affirmative action in most cases. But those words he used are still hurtful. All I have to do is insert the word female and I am right back there a few decades…or at least more than I am going to admit on this blog.

  12. Cargosquid

    Your examples include his reference to other studies. Those are the points of view from those studies: “There are — there are those who contend”

    He’s not talking about artificial barriers. Where are you even getting this? There are no artificial barriers in this.

    It is a fact….a fact, that more minorities completed and graduated college after CA reformed and ended their affirmative action quotas. That is all he is talking about. You are reading way to much into this.

    1. He is not quoting anyone. The words came out of his mouth. He owns them. Those words are hurtful. Artificial barriers are those set by people. These words are hurtful because of the history behind those words.

      Ask yourself why there was affirmative action in the first place? Why did it ever come into existence?

      I can do this one step at a time if that is what it takes for you to quit making up excuses for a man who has continually made hurtful remarks about many different sub-groups of people.

  13. Jackson Bills

    Do you think that the studies Justice Scalia referenced, and data that they show, are racist or bigoted in any way?

    1. I don’t recall him citing a specific reference.

  14. Jackson Bills

    Do you think that the study itself was racist or bigoted in any way?

    1. I haven’t seen a specific study he cited. I don’t recall him making any remarks other than general and he seemed to agree with them since they came out of his mouth.

      I will tell you this, there have been studies that support and disavow affirmative action since the 70’s. Maybe even longer. I question whether any of the “studies” are unbiased or if they can be unbiased.

  15. Jackson Bills

    This is the the study done by Richard Sander and published in the Stanford Law Review:

    Mr. Sander is a law professor at the University of California at Los Angeles and co-authored the court brief with legal writer Stuart Taylor. Professor Sander’s “mismatch theory” isn’t anything new; he published the study over a decade ago and still works on this issue today.

    If you want to read more from Professor Sander on the subject he guest blogged about it over at the Washington Post last week:

    1. Did Scalia specifically reference this study by name in what he said? I sure didn’t see it. If he didn’t, then I don’t want to be bothered with various friend of the court briefs submitted. I am sure you will find one supporting all sides of the issue at hand.

      It isn’t the content of the case…its what words came out of Scalia’s mouth. Show me a quotation he said while the case was being heard where he cites this study and we can talk about it. If he didn’t cite it, it doesn’t exist.

    1. I am sure there were lots of briefs with study after study presented. Did Scalia quote this brief in his questioning? If he did not, then he owns the words.

  16. Jackson Bills

    Do you believe that this study, and/or the legal brief, are racist or bigoted in any way?

Comments are closed.