Scalia's Comment: "Racist" or Not, It was Bad

In Sweatt v. Painter [University of Texas] in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school." In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession."

-- Brown v. Bd of Ed.

Various blogs (etc.) are discussing Justice Scalia's questions/comments during the Fisher II oral argument concerning the "mismatch theory," which even those who defend him (such as Stuart Taylor, a critic of affirmative action) deemed "dreadfully worded."  Various people who disagree with him went out of their way to assure us that the comments were not "racist," which got some pushback (thread as a whole interesting).

As noted there, the defenses at times are a tad exaggerated as are the criticisms of the critics.  The best approach there is to take everything into consideration. Seems fitting given current law regarding how to treat college admissions.  I have little sympathy for Scalia and find "this is why we don't have Supreme Court televised" discussion inane on some level.  THIS?  What a bunch of babies.  CJ Roberts' benefits of more blacks in physics class question wasn't great either. But, at the end of the day focusing on how they are "racists" or whatever, is not as useful as addressing the merits of their arguments. Which in the process helps show they are tools. It's a win win.

One reason that the mismatch case against affirmative action is a hard one to make is the difficulty in measuring the intangible benefits of attending one of the country’s most selective institutions—such as access to powerful peer networks, the long-term prestige of a diploma, and the increased likelihood that one’s children will aspire to and be able to attain the highest levels of educational accomplishment.

The essay should be read in full but this portion is especially notable since there is a throwback feel to it.  The Supreme Court sixty-five years ago by this point realized that merely going to some school, including out of state, wasn't enough to make something "equal."  There are a range of things that education provide, something the "new" To Kill a Mockingbird "sequel" notes at one point -- Atticus' protege went to law school, but the narrator says the main value was networking.  This is part of the "qualifications" of the school, shall we say, which is as complicated as that of the student.

Anyway, I know the first case was involved a law school, but come on -- Sweatt v. Painter involved keeping people out of the University of Texas Law School.  The connection to Fisher v. UT is just too easy. And, let's not let personality and "racism" (like calling those against same sex marriage "bigots" was seen as horrible since surely denying basic equality could be mistaken, but it cannot be mean or something) cloud that the comments as a whole were wrong, however you want to phrase it.

[Not that the "racist" critics have nothing and that can very well be part of the discussion.  Just don't let it be singled out as the only thing. The result is very tedious and unproductive. And, ultimately, the issue here is not the justices -- useful as that might be to focus on as a factor [ha!], but the value of the program and diversity/affirmative action programs as a whole.]