Supreme Court Justice Antonin Scalia is at it again. In oral arguments for Fisher v. University of Texas, a case testing the University of Texas’s affirmative action policies, Scalia once more stepped into the role of everyone’s favorite racist uncle, and seemed to claim that minority students were somehow harmed by being admitted to top-tier schools. Rather, he said, they would be better served by being admitted to “slower track” programs.

“During oral arguments in a critical case about affirmative action Wednesday, Supreme Court Justice Antonin Scalia suggested that ‘most black scientists in the U.S.’ benefit from not being admitted into top-tier programs. ‘They’re being pushed into schools that are too advanced for them,’ Scalia said of African-American students accepted under affirmative action programs. ‘Most of the black scientists in this country do not come from the most advanced schools,’ Scalia, a noted opponent of affirmative action said, according to reporters present for the case. Scalia added that many such African-American scientists actually benefited from a ‘slower track.’”

Before digging into this fantastic statement, let us first acknowledge that it is, in many ways, a distraction. Fisher v. University of Texas has already been to the Supreme Court once, back in 2013, when it was kicked back to the federal appeals court. And the simple facts of the case of Abigail Fisher, who alleges that the affirmative action policies of UT led to her being denied admission, seem to give lie to her claim:

“Although one African-American and four Latino applicants with lower combined academic and personal achievement scores than Ms. Fisher’s were provisionally admitted, so were 42 white applicants whose scores were identical to or lower than hers. Similarly, 168 black and Latino students with academic and personal achievement profiles that were as good as, or better than, Ms. Fisher’s were also denied, according to the university.”

That the Supreme Court may be poised to gut affirmative action based on a rather questionable case is tragic, and probably a great deal more important than the blather of Scalia. But it is worth taking some time to examine his argument. It appears, to any thinking being, to be sort of massively racist. And he is, predictably, being attacked for it. Senate Minority Leader Harry Reid called him out on the Senate floor accusing him of being “racist in application, if not intent.” The Reverend Al Sharpton and actress Rashida Jones have both denounced Scalia’s claim as open racism. And it seems to be an open and shut case, right?

Well, not exactly. There is more going on with Antonin Scalia’s words than their simple inflammatory nature. And some are coming to his defense, claiming that, while the words are clumsy and seemingly racist, what Scalia was actually trying to do was articulate something called “mismatch theory.”

“This is the ‘mismatch’ theory, which holds that some minority students admitted to highly competitive universities fare worse there academically than they would have at less selective institutions. The argument is propounded in a book titled ‘Mismatch’ by Richard H. Sander, a UCLA law professor, and the journalist Stuart Taylor Jr. . . . Sander also submitted a friend-of-the-court brief in the Texas case.”

The argument goes that, when affirmative action admits minority students into more competitive, top-tier schools, their academic performance will be worse than it might have been in a less competitive environment. Thus, minority students are harmed by the very policy that was intended to help them. Scalia may have articulated this argument poorly, and couched it in his typically blunt and controversial fashion, but the argument itself is not racist. Or at least, that is what Scalia’s defenders would have you think.

Okay. Let’s take a closer look at mismatch theory. It has shown up before — Clarence Thomas referenced it the first time Fisher v. University of Texas was before the Supreme Court. And there is, perhaps, a certain common sense appeal to it. Why place minority students in an academic environment where they will not thrive, simply in service of some fanciful notion of diversity? The problem is that mismatch theory doesn’t hold up well to serious scrutiny. In a working paper released in 2013, Michal Kurlaender and Eric Grodsky demonstrate that the actual data doesn’t support the theory.

“We found that mismatch has no reliable or substantively notable bearing on grades, rates of credit accumulation, or persistence. Given the benefits that accrue to those who earn degrees from elite institutions, we reject the paternalistic justification for exclusion. Denying opportunities to students on the basis of a mismatch, at least within the rather substantial range of student background attributes we observe, is not clearly in the best interests of excluded students.”

While students admitted to top-tier institutions via affirmative action policies may not perform as well as they might have at one of Scalia’s “slower track” programs, that does not imply that they would actually be harmed. Rather, the benefit of attending a more elite institution outweighs the small hit to academic performance. Further, once we move beyond college and into the real world, the picture grows even murkier. True, there is a modest correlation between college GPA and family income, but income is not the sole measure of success in life. Studies of law students have revealed that minority students being “mismatched” in top-tier programs has no impact on the rates at which they pass the bar exam. It seems that mismatch theory is a lot of hand-waving about nothing at all.

And it would be easy to dismiss this theory, save for the fact that it is being cited as an argument against affirmative action. And as such, it embodies the worst sort of paternalism. We know what is best for minority students. We care. We only want to see them succeed. And they just can’t do that at top-tier schools. Nonsense. Rank nonsense.

Which brings us back to the original question posed by this article: is Scalia racist or just plain wrong? A little bit of each I would argue. While mismatch theory may not be as blatantly racist as a Confederate flag waving member of the KKK, its paternalistic, “we know what is best for you,” attitude partakes in the institutional racism that pervades this country. In espousing mismatch theory, Scalia too partakes in this racism. At the same time, mismatch theory is demonstrably wrong, as has been shown repeatedly. So, in the end, we see that Scalia is a little bit racist and a lot bit wrong. Damn shame that he’s hearing a case on affirmative action.

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