Scales of Scalia: A Pragmatic Assessment of Judicial Bias

Mark A. Sequeira

During oral arguments for a Supreme Court affirmative action case, Justice Antonin Scalia remarked that schools like The University of Texas were too advanced for African Americans.  Justice Scalia further noted that African Americans would be better served by going to “lesser” schools where they aren’t challenged or pushed as hard.  The Justice’s remarks were predicated on an amicus brief which claimed that preferences in admissions adversely impacted the beneficiaries.  Let’s consider these remarks in context.


It seems appropriate to begin with the document which served as the catalyst for Justice Scalia’s remarks.  This document is known as amicus curiae, Latin for “friend of the court”.  Court cases are generally limited to presentation of factual record or evidence by the litigants, and attorneys tend to present arguments favorable to their clients.  Amicus Curiae is intended to provide objective, neutral third party insight into a case, particularly when the impacts of a judgement could be significant.  The authors of an amicus brief are supposed to offer such insight of their own accord, and not at the request of either party.  So who were the authors of the amicus brief to which Justice Scalia was referring?  The document was authored by UCLA Law Professor, Richard Sander, as a representative of Project SEAPHE (Scale and Effects of Preferences in Higher Education).  Project SEAPHE’s mission is as follows:


“Project SEAPHE is a community of scholars committed to the empirical study of admissions preferences in higher education. We seek to ground the public’s understanding of affirmative action in rigorous, data-driven studies. Members of the project cover a range of disciplines, from economics and statistics to sociology and law.”


The mission less than subtly hints at objectivity; rigorous, data-driven research by a collection of intellectuals with a broad range of expertise.  The mission suggests an earnest, noble undertaking, but minimal probing reveals that their project is completely funded by the Searle Freedom Trust.  The Searle Freedom Trust is a $100 million trust that contributes to various causes.  Some of their grants provided funding for campaigns to advocate cutting government worker pay and reduce public sector services in education.  The Searle Freedom Trust has also been the most frequent supporter of all-expense paid seminars for federal judges.  This is also the same organization covering the legal expenses of Abigail Fisher, plaintiff in the case where Justice Scalia made his remarks.  The amicus curiae filed with the court is far from objective.  In fact, it is shamefully biased.  In short, Justice Scalia’s remarks are based on a document written by an organization fully funded by a wealthy trust which also happens to be covering the legal expenses of the plaintiff.  Oh and said trust also funds the all-expense paid seminars which he attends.


While the biased underpinnings of Justice Scalia’s remarks are easily revealed, such an exposition actually does not address the veracity of his claims or the research upon which they are based.  It is possible that, despite the biased intent, the research actually substantiates the claims.  Richard Sander, who authored the amicus curiae, claims his research demonstrates that preferences (particularly racial) in admissions yield what the literature calls “mismatch effects”.  The idea is that overusing or misusing preferences actually impacts the beneficiaries adversely.  The research cites three types of mismatch: Learning Mismatch, Competition Mismatch, and Social Mismatch.  Learning Mismatch refers to the scenario where preferences put students in an environment that is too rigorous.  As a result, they don’t have a comprehensive grasp of the material taught in the class and eventually graduate without having adequately mastered the content.  This would yield poorer job opportunities and overall career achievement that is subpar relative to their professional peers.  Competition Mismatch is a scenario where preferences allow the admission of students who are not academically prepared for the rigorous curricula of top tier institutions.  Such lack of academic preparation causes students to perform poorly, compelling them to change majors (such as is the case in STEM majors) or flunk out altogether.  Social Mismatch posits that students tend to interact more closely with those of similar academic preparation.  In this case, if preferences are allowing admission of students with less academic preparation, then they will be marginalized.  Sander and other researchers have amassed a substantial collection of literature in support of mismatch effects.  The amicus curiae brief even alludes to their research establishing a causal link.  Nothing would delight me more than to dissect their research by scrutinizing their data mining techniques, critically assessing their choice of statistical modeling, or expounding on the misrepresentation of correlation as causation. Such a critique would not only be beyond the scope of this discourse, but also completely unnecessary since all of their research is based on a false assumption.  Their assumption is that racial preferences (Affirmative Action) seek to grant admission to unqualified Black students (also women and other underrepresented minorities), at the expense of qualified White students.  This is false.  Prior to Affirmative Action, secondary institutions universally and unapologetically excluded qualified African Americans from attending, based solely on skin color.  There were no grades high enough, test scores solid enough, or extracurricular activities noble enough to secure their admission, even amongst much less qualified Whites.  No remotely rational person would deny that this practice was unfair.  Whites were so opposed admitting even one Black person that they opted to start entire schools whose sole purpose it was to educate African Americans.  The extent of this sentiment is evident in that almost 150 such colleges and universities were created in the south alone.  Over 100 of these schools still exist and are generally referred to as Historically Black Colleges and Universities (HBCU’s).  While there are some who compare these schools to all White institutions in an attempt to support the myth of reverse racism, nothing could be further from the truth.  No HBCU ever had a policy or practice to exclude applicants of other races or ethnicities.  Given the historical context of the schools’ creation, there simply were no Whites who would ever opt to attend an HBCU if they could attend even the lowest caliber non-Black institution.  Affirmative action was born out of this dynamic.  The intent of Affirmative Action was (is) to compel institutions to fairly assess qualified applicants from historically disadvantaged groups, of which Black people were a part.  It is important to note that this description also includes White women.  It simply is not the case that colleges and universities are admitting severely underqualified Black students at the expense of top caliber White students.  In the case currently being disputed, Abigail Fisher actually did not meet the qualifications for admissions to The University of Texas.  The University of Texas admits any Texas resident who graduates in the top 10% of their class.  85% of their student body graduated in the top 10% of their class.  The other 15% are admitted as exceptions, based on legacy (parents attended), proficiency in music, athletic prowess, and sometimes gender or race.  Abigail Fisher did not graduate in the top 10% of her class and would have been considered on an exception basis.  Abigail Fisher wasn’t even waitlisted, she was rejected.  While she may be a capable individual, she simply did not meet the academic qualifications to be admitted to The University of Texas.


As a culminating point, let’s consider another aspect of Justice Scalia’s remarks.  While Affirmative Action was certainly the target of his disposition, also evident was his disdain and lack of respect for the institutions which he urged African Americans to attend as an alternative.  He referred to them as “lesser schools”.  What exactly are these less rigorous, less advanced institutions?  Well, Justice Scalia is arguing that African Americans should not attend institutions where preferences are considered.  Only predominantly White institutions have a need for such preferences.  The only institutions where such preferences are not considered are Historically Black Colleges and Universities.  Justice Scalia asserts that, at such institutions, the curricula are less rigorous, thereby allowing African Americans to excel and ultimately graduate.  This is a flawed assertion.  It is true that graduates from HBCU’s excel in many areas and are statistically overrepresented in almost every profession and graduate school.  HBCU graduates account for only 10% of all Black students graduating from college, yet account for 40% of Black professional engineers, 80% of Black judges, and 70% of Black science graduate students at top 10 schools.  As a Morehouse College graduate, these are statistics I proudly reference to potential students, as well as in defense against those who attach such institutions.  The overwhelming success of graduates from these institutions is, however, not predicated upon the facility of the coursework.  Such an assertion is actually quite absurd.  How is it possible that students who matriculate through allegedly less rigorous curricula are able to graduate and suddenly be universally competitive among their peers, domestically and internationally?  Again, the assertion is flawed.  Students at these institutions don’t excel because the coursework is less challenging.  Many graduates of HBCU’s, who subsequently attended institutions like The University of Texas (or Harvard, Yale, Stanford, etc.), can attest that the rigor of the coursework and expectations of the professors at HBCU’s often far exceeded those at even the Ivy League institutions where they earned their graduate and professional degrees.  Students excel at HBCU’s because the entire institution is genuinely invested in their success, from the janitors and cafeteria staff to the professors and administration.  Many of the professors and administrators are themselves graduates and would gladly fail you rather than allow you to pass, graduate, and enter the world sullying the reputation of the school they proudly attended.  Students are also personally invested in the success of other students.  Students don’t refuse to study with you or invite you to study sessions where no one else shows up.  Instead, there is a sense of comradery built among students intent on success, the sentiment being “no man left behind”.  This sentiment often also exists among White students at predominantly White institutions, to the exclusion of Black students (and other minorities).  It is this exclusion that often results in underperformance of these students, not pseudo-scholarly fabricated concepts like “mismatch effects”.  Richard Sander and other researchers should instead conduct “rigorous, data driven studies” to assess the components of an HBCU education that cause (not correlate) students to be successful.  The “more advanced” institutions could then utilize the findings to create an academic environment capable of replicating the success of HBCU’s.  Such a strategy is certainly beneficial to the Black students who attend such institutions, but it also benefits other students and the university in general.  There is even the additional benefit to the many HBCU graduates who often attend these institutions to earn graduate and professional degrees.


I suppose there is nothing new about Justice Scalia’s remarks.  He and many others have unabashedly espoused such sentiments for decades.  It is, however, important that we begin to expose such rhetoric, particularly when it is disguised as intellectual discourse or scholarly research.  This type of bigotry is actually more harmful than its more blatant counterparts because it is supported by potent and impactful government, educational, and financial institutions.  Today, on intellectual grounds, I reject Justice Scalia’s remarks, the research that supported such remarks, and the trust that is financing it all.  Your wealth will no longer be enough to maintain the socioeconomic infrastructure of the past.


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