When Lawyers Must Speak Out

A commentary on Justice Antonin Scalia’s controversial remarks.

Justice Antonin Scalia set off a firestorm in December during an oral argument in a case (Fischer v. University of Texas at Austin) challenging an admissions policy designed to enhance diversity at the University of Texas. The challenged policy includes race as one of many factors for admission. In questioning the validity of the policy, the Justice referred to a 2004 study known as the “mis-match” theory. This theory, in Justice Scalia’s words, asserts that minority students are better off in “slower track 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.” Without asking a question, he simply expressed his opinion: “I’m just not impressed by the fact that the University of Texas may have fewer [minority students]. Maybe it ought to have fewer.”

As civil rights lawyers who represent African American students scarred by low expectations, tracking and subjective policies that funnel Black children away from gifted courses into the lowest tracks, and impose disproportionately harsher discipline upon these same children, we find this rhetoric all too familiar.

The Justice’s assumption is, first, just wrong on the facts. It assumes that somehow the minority students who are admitted to UT under the challenged admissions policy are not qualified. But, according to UT’s counsel, the academic performance of minority students admitted under this policy is better over time than that of the students who were selected for admission from the top 10% of their high school classes. And, according to Nikole Hannah-Jones at ProPublica, there were 42 White students admitted to the University of Texas who had grades and resumes that were inferior to those of the White plaintiff, Abigail Fisher. Why is there not talk of shunting them to “slower track schools?”

The mis-match theory also is devastatingly patronizing: “we know what is best—you would do better somewhere else, where it isn’t too hard.” Last month, our clients, Concerned African American Parents, filed a complaint with the Department of Education that directly responds to attitudes promoted by this theory. They allege that teachers assign African American children to lower tracks. Parents must fight to get their children moved and, to do so, must sign a paper called “AGAINST EDUCATIONAL ADVICE” just to ensure their children are placed in more challenging classes that better meet their needs.

Justice Scalia and proponents of this theory purport to be looking out for the interests of the students. Why can’t we just assume that the students and their parents know what they are doing when they apply to UT, or want to take an advanced math course? And why don’t we worry similarly about the academic success of, for example, the White student who is admitted to Dartmouth because a parent went there?

But most troubling, why did the “mis-match” theory assume such a prominent role in an argument in the United State Supreme Court? It is junk science. As detailed in the Brief of Empirical Scholars as Amici Curiae, the theory is rife with “basic methodological errors” resulting in “wide ranging criticism because of its methodological flaws.” Balanced against the proponents of “mis-match,” dozens of researchers have demonstrated that minority students perform better when admitted to higher quality schools. As summarized by William G. Bowen in Crossing the Finish Line: Completing College at America’s Public Universities 210 (Princeton Univ. Press 2011) “[t]here is certainly no evidence that black men were ‘harmed’ by going to the more selective universities that chose to admit them. In fact, the evidence available strongly suggests that students in general, including black students, are generally well advised to enroll at the most challenging university that will accept them.”

As lawyers, we are sworn to uphold the laws and the protections of the United States Constitution. The most basic and cherished of all of our rights is the concept of Equal Protection, that each of us is equal under the eyes of the law. But the attitudes we heard from Justice Scalia—that Black students would be better off in inferior or “less advanced” schools, with no expressed, corresponding concern about the lesser-qualified White student admissions–raises basic issues of  equal treatment. And we say now that what we heard was wrong—even if the speaker is a Justice of the United States Supreme Court. If lawyers don’t speak out, who will?