Government & Politics

Speech Police Attack Scalia

The justice is "racist" for citing facts and reason.

Robin Smith · Dec. 14, 2015

Supreme Court Justice Antonin Scalia was brutalized by the PC Police after he offered comments last week about a theory related to affirmative action utilized in academia. During arguments discussing a lawsuit filed by a white female student against the University of Texas, Scalia had the gall (in the race-baiters’ estimation) to ask about the mismatch theory. This is usually known as exploring the merits of the case. Leading the charge against Scalia were both Senate Minority Leader Harry Reid (D-NV) and the “Reverend” Al Sharpton, who, like a hammer looking for a nail, never misses a chance to hit someone as “racist.”

Let’s review the basic facts. The actual case before SCOTUS involves Abigail Fisher, a Texas student who was not admitted to the University of Texas, she alleges, because of racial discrimination. She did not rank in the top 10% of her graduating high school class, which is the first criteria for admission into the University of Texas. Some 81% of those admitted during the year of her application met that threshold, leaving 19% of admitted students needing to meet additional criteria that included but were not limited to race. Fisher was among those denied admission.

The original judgment was in the favor of the University of Texas, which automatically admits all applying high school seniors who finish in the top 10% of their graduating class. Traveling to the Supreme Court initially in 2013, Fisher v University of Texas at Austin (UT) was returned to a federal appeals court with the task of determining whether the policy in use at UT was “narrow” versus the type of policy ruled “unconstitutional” by SCOTUS utilized by the University of Michigan in its undergraduate admissions.

In 2013, SCOTUS wrote in its first opinion, “Narrow tailoring also requires that the reviewing court verify that it is ‘necessary’ for a university to use race to achieve the educational benefits of diversity.” The appeals process upheld the University of Texas method in 2014, setting the stage for last week’s second appearance before the High Court.

The hearings Wednesday was “oral arguments,” which, as Alex Griswold of Mediaite observed, “are not an avenue for justices to share their views on the case at hand,” but are instead “an opportunity to suss out any holes in the arguments of both parties.”

Scalia, the long-serving justice appointed by Ronald Reagan in 1986, referred to a theory labeled “mismatch” that places ill-prepared or ill-equipped students in rigorous academic programs that result in failure due to the criterion of race serving as the driving force.

In open court, Scalia offered comments on published assertions made by others regarding this “mismatch”: “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. … One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

Taken in isolation, the comments were quickly equated by the Left’s most predictable agitators of divisiveness as racist. Sharpton, who preaches the gospel of prejudice complete with inflammatory protests, tied the “climate that we’re seeing around the country” (which, he neglected to mention, he has helped create) to Scalia’s remarks implying that the justice spoke from his own beliefs rather than injecting a published theory into the discourse.

In an Oct. 2, 2012, piece published in The Atlantic, these statements were made regarding the “Mismatch Theory”:

The single biggest problem in this system — a problem documented by a vast and growing array of research — is the tendency of large preferences to boomerang and harm their intended beneficiaries. Large preferences often place students in environments where they can neither learn nor compete effectively — even though these same students would thrive had they gone to less competitive but still quite good schools.

We refer to this problem as “mismatch,” a word that largely explains why, even though blacks are more likely to enter college than are whites with similar backgrounds, they will usually get much lower grades, rank toward the bottom of the class, and far more often drop out. Because of mismatch, racial preference policies often stigmatize minorities, reinforce pernicious stereotypes, and undermine the self-confidence of beneficiaries, rather than creating the diverse racial utopias so often advertised in college campus brochures.

No, Justice Antonin Scalia is not the author of that piece three years ago. Instead, the excerpt is from authors Richard Sander, UCLA professor and economist, and Stuart Taylor Jr., a legal journalist. The latter also penned the book, “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.”

In summary, the overreaction to Scalia’s recitation of someone else’s research and writings while engaging in public discourse over an issue before the Court is just another example of the Left’s approach to speech: Either consent and speak in uniformity blessed by the Left or be silenced by insults and name-calling that generates a twisted narrative relayed as fact by the Leftmedia presstitutes.

By the way, the right question to ask on the topic of affirmative action is this: “In the eight states that have banned the practice and the two others that use other criteria, how is it that they’re achieving or exceeding diversity goals?”

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