Scalia and “Lesser” Schools

Scalia and Fisher II

Last week I, like others, was taken aback by Justice Scalia’s comments during oral argument in the UT affirmative action case (Fisher II, comments on pp.67-68).  To me it sounded like an endorsement of separate but equal, and I made a tweet to that effect.  But since then, I’ve had an actual constructive interchange with a conservative friend on Facebook that has inspired me to write more—if only to prove that there is such a thing as a constructive political discussion on Facebook.  I will stand by my tweet (that’s a sentence I never thought I would ever write sincerely) and want to address my thoughts to five points.

First, that the language we use to discuss the position matters.  It is the way Scalia talked about the issue that justifies my characterization of it, whether or not one believes in mismatch theory generally.  Second, that there is, in fact, a problem with race in education in this country in general and with lawyers in particular.  We might disagree on the means to redress it, but we should all be dissatisfied with the scale and scope of the problem.  Third, that there’s more than one way to build an admitted class.  So much of the discussion seems to focus on the “fact” that better standardized tests make a better candidate, when much of admissions is moving towards other criteria, including non-cognitive criteria.  Fourth, that really addressing diversity doesn’t just end with admissions.  If we only change the way we admit students but not the way in which we support and address their needs, then we’re not good teachers.  And finally, I think the practice of law in particular has important social networking effects, effects that translate into real opportunity.

The language

Language matters, particularly to lawyers.  I spend a lot of my time in my first year criminal law classes talking about the meaning of words, how different word selections or definitions can change outcomes.  I tell students that they need to focus on what “reasonable” or “armed criminal” or “theft” or “interrogation” really means.  I do this because lawyers argue over the meaning of words and know that they need to be precise.  Here is what Justice Scalia said (again, go to pp.67-68):

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.”  (The ellipses just mark where he was interrupted.)

Either Scalia meant what he said or he spoke indelicately.  Neither interpretation is good news.  The choice of words—“less-advanced,” “slower-track”, and “lesser schools”—does nothing if not convey the idea that the students in question belong at a school that is not as good as the University of Texas.  These are loaded terms, stigmatizing terms.  They were made by a sitting justice on the highest court in the land, and his use of this kind of language sends a message that powerful people believe certain things about where African-American students belong.  Brown taught us that “A sense of inferiority affects the motivation of a child to learn.”  In Brown, it was state-sanctioned de jure segregation, but the larger point, in my view, is about the sense of inferiority, not the source of it.  I teach at a school that is usually in the top 5 in racial and ethnic diversity, and I can tell you that our students feel that Scalia was telling them they were inferior.  It would be cold comfort to tell them that the source of this statement was “just” a sitting Supreme Court justice in 2015 and not a state legislature in the 1950s, and that the procedural posture of the case was different.

So, granted, this isn’t the same as Plessy’s doctrine of separate but equal.  But, as another friend of mine pointed out, perhaps it’s not better.  Scalia seems to be saying not so much separate but equal but “separate-but-unequal-and-that’s-OK”.

The problem

White people and black people live in different worlds; African-Americans are much more likely to go to prison, and much less likely to go to college, than similarly situated white people.  The racial achievement gap in secondary education is as wide as ever.   In California, otherwise a bastion of multiculturalism, almost 80 percent of lawyers are white; prosecutors are 70 percent white (but whites constitute 38 percent of the population).

So the problem exists.  We’re just talking about the remedy.  I would have much less of a problem if, in discussing affirmative action, people said, “These are outrageous gaps based on race.  We really need to do something about the problem.  It’s just that this remedy is not the one we should be pursuing.”  I don’t get that from Scalia’s comments during oral argument.  I have as a goal the elimination of gaps due to one’s demographics (including not only race but, inter alia, religion, gender, sexual orientation, and economic class).  So the issue is not just “not this” but it has to be “let’s instead do this” or at least “it’s difficult that I can’t legislate from the bench but I at least see that there’s a problem.”

If, writing on a blank slate, would I choose as an intervention point college admissions?  No.  I think the problem is further upstream, in primary and secondary education.  But let’s look at how Texas is doing there.  There are significant racial disparities in Texas administration of school discipline, a pattern that is mirrored nationally.  Racial segregation in primary and secondary education is a big contributor to the achievement gap, though this might be because those schools are poorer—but that just begs the question about why schools of color are also poor.  Intervention at the university level might be too late, but it’s at least something.  Doing nothing is not, in my view, an option.  So if you’re opposed to UT’s admissions policies, I want to know what the alternative is and what you’re doing to support it.


As a law professor, I know the LSAT isn’t perfect, as anyone who has taken it will tell you. It has predictive value on things like bar passage rate, but there is always the problem of hidden variables (and also the question of whether students are, you know, also learning something in law school that correlates with their future academic success).  Maybe LSAT scores correlate with academic outcomes only because both the LSAT and the academic outcomes are related to a third variable, like work ethic.

What’s interesting about the focus on test scores as a measure of whether someone deserves admission is the move towards non-cognitive assessments in admissions (subscription).  Focusing only on cognitive assessments misses other skills crucial to life success.  Admissions offices are moving towards these assessments because they want these students, and because they, who deal with admissions tests on a daily basis, don’t have complete faith in them as the arbiter of the admissions decision.

Why?  Because there are a number of ways to build a class.  What is the goal of a law school, for examplel?  To have students make good grades or to make good lawyers?  To have someone just pass the bar or to be a good counselor, interviewer, negotiator, client manager?  Schools have an interest in other kinds of assets—particularly law schools—because the ABA is pushing law schools towards the acquisition of clinical skills, business development skills, and collaborative skills.  Students are being told that the future is collaborative and diverse.  Knowledge changes, particularly in the law.  Mastering a static set of facts doesn’t cut it.  Diversity is a valued skill because the market is demanding it.  Why can’t UT decide that this is part of its mission?

Don’t stop with admissions

Of course, just admitting students isn’t where the education ends.  It should be where it begins.  Here, I think, schools do have a ways to go in terms of both capitalizing on the assets of their students and in addressing certain shortcomings that might be opaque to the average professor.  I know that before law school I benefited by talking to my wife and her managing partner before going to law school about how they did it (both of them, I should say, people of color, and I am white).  But we should recognize that cultural capital has compound interest—knowing a lawyer to talk you through some of the cultural aspects of the profession is key.  Many of my students are the first in their family to go to college, let alone law school.  There’s a lot they don’t even know they don’t know, and it might matter when it comes time to interview or write a resume.

The social nature of law

Why is it better to graduate from one school rather than another?  What makes a UT degree valuable?  At least part of it is the social networks you’ll make.  It might be better to graduate from the bottom of a great school than the top of a poorer one because of the people you know.  This is particularly true of the law because the practice of law is intensely social.  It wasn’t too long ago that lawyers couldn’t advertise at all.  That’s still reflected in the profession, since referrals are the key not only to jobs but to getting new clients.  When you need a lawyer, quality matters.  You don’t tend to use Yelp and the opinions of strangers—you ask someone you know for their recommendations.  And if you already have a lawyer for one aspect of your life, you’ll ask him or her.  Many of their contacts will come from law school classmates.

So what have I learned?   Maybe that I’m probably ill-suited to blogging—I either want to send out 140 characters or 1600 words.  But I hope this engenders further discussion.

[Edited for clarity.]

Author: W. David Ball

W. David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.

12 thoughts on “Scalia and “Lesser” Schools”

  1. Of course, there’s one further problem with the LSAT as a predictor of lawyer quality: The assumption that predicting bar-passage rates bears upon suitability to practice law, even if limited just to intellectual capability. Specific examples:

    * The (sadly non-hypothetical) attorney who never learns anything after law school — just “brokers deals”, despite the increasingly pointed distinctions between the deals brokered and the legal context in which they are brokered.

    * The distinction between an aptitude-based exam like the LSAT (which, aside from certain vocabulary and very basic mathematical concepts, does not require actual knowledge of specific principles, let alone facts) and a partially-knowledge-based exam like the bar exam (which does require, for example, knowing the governing jurisdiction’s statute of limitations for general civil suits).

    * The utter failure of law schools to teach anything about gathering facts and evidence, and analyzing that evidence for anything other than admissible form.

    One also wonders if anyone has done a correlation between LSAT scores and score on the Multistate Professional Responsibility Exam… but that’s for another time, eh?

  2. Scalia absolutely advocated for separate and less than equal. Justified by white supremacy. Plain as day.

    1. Strictly speaking, he was justifying his remarks by the (bogus) idea that whites are superior to blacks. This is different from white supremacy, which asserts (falsely, of course) that whites are superior to ALL other races. Scalia could believe that Asians are superior to whites and still make the same argument.

  3. The joke is that the argument is about hardly anything. The University of Texas admission system reduces its affirmative action to homeopathic rainbow-washing. By law, it admits the top 10% of high school graduates by grade. That left 8% of admissions to be allocated by other methods, meeting all diversity objectives as well as recognizing non-academic achievement and potential. That can't be done in any serious way.

    Admission by test scores and no arguments embeds massive discrimination against the poor, blacks and (I guess) Latinos with English as a second language. This holds on either of two concepts of equal opportunity: equal potential for achievement in higher education, allowing for embedded disadvantages; and equal educational achievement at age 18, again correcting for initial disadvantages. Even if UT allocated all 841 places to blacks, to poor kids, or to second-language Latinos, it would not have been able to compensate for any one of the disadvantages. Trying to meet all three with 8% of the places is plainly impossible.

    All this assumes the conventional approach that the correct criterion for access to taxpayer-subsidized higher education is equal opportunity in some sense. This is not at all obvious. Clever and industrious adults take it for granted that HE opportunity should go to people like themselves, rewarding their winning tickets in the lotteries of birth and nurture. Why? Universities have always been vocational in the broad sense, preparing an educated middle and upper class. It is desirable that teachers, policemen, lawyers, doctors, congressmen, and Supreme Court Justices roughly match the diversity of the society they serve, even at the expense of getting the most qualified applicants in some sense. Look at Justice Clarence Thomas. Of course, they should all meet the minimum standard for the job, which in the case of SCOTUS justices is pretty high. There is nothing immoral about quotas to get this result.

    What about geniuses and astronomers? First, both are residual categories. The geniuses are simply irrelevant, Robert Oppenheimer Jr. aces any test and gets in under any system other than a lottery. The astronomers can be admitted by the score and no arguments, since they are so few as to make no difference to the overall mix. (But see the widespread sexism in the trade.)

    1. Well I know the California history a little better, but … iirc, Texas uses the 10% system as its own way to achieve integration precisely because so many (white) people object to more obvious forms of affirmative action. Since the US, and Texas, are generally racially segregated in residence, admitting the top 10% of all high schools (which are segregated because of the segregated housing…) gets Texas a pretty integrated class, and since we all politely ignore that we are residentially segregated, people *feel* like it's a fairer way to integrate. Apologies if you already knew all this, I just wasn't sure. My brain is foggy today, as I wonder but am not sure if California has copied it. (We sort of had a similar regime anyway, from our UC admissions setup.)

      I don't know if anyone in Texas sued to change the 10% system. I would imagine someone at least thought about it, so there must be some legal reason why such a system resting on resi segregation is legal (though it escapes me at the moment).

      So Ms. Fisher is reduced to arguing over the scraps. I feel sorry for her a little, that she has no one in her life to explain to her that there is no preexisting right to be a member of a racially blind admitted class. It doesn't exist, at least not yet, afaik. And I sure don't remember getting to vote on it.

      1. Thanks. The "top 10%" is not I see "the score and no arguments". This weakens my argument somewhat, and I withdraw the “homeopathic” charge, But it does not invalidate my point: the residential segregation can't be complete, surely. And it does little to compensate for poverty – in a de facto segregated mostly-black high school, as in the prosperous white suburban one, parental income will still drive disparate results.

        Perhaps now some rich white kid will be brought forward who was in the 11th decile at a crack suburban high school, didn't get in to Austin, and can claim with more justice than Ms. Fisher that she was excluded by a tenth-decile black kid from an inner-city dump school with a lower SAT score.

        The mismatch theory can be tested, if it needs more refutation, by comparing cohort outcomes at UT Austin before and after the 10% rule was introduced. My prediction: no detectable difference.

  4. Scalia's argument (and the Plessy-style language in which he frames it) is not only racist but stupidly racist. Look at all the legacies, the tutored kids, the maximum-high-school-achievers who crash and burn in college. It's pretty clear that many of them would have benefited from going to slower-paced schools with less of a hothouse atmosphere. Look at the extraordinarily dubious achievements of some of those lottery winners in post-college life and the issue is even clearer. Once you open up the field for broad generalizations, you're pretty much hoist.

  5. It sounds as though the OP is asserting that prosecutors constitute 38% of the population of California. Sometimes it seems that way, but I think he meant to say tht 38% of Californians are white.

  6. Well, as with the Bakke and Boston Latin cases, the plaintiff was clearly a pawn of racist and oppressive right wing puppet-masters. How would an applicant ever know they were rejected in favor of someone who was admitted via quota. Somebody has to dig up that information for them. Why would they hire powerful lawyers at great expense unless politically and racially motivated third parties were funding them. And why on Earth would any student want to be publicly identified as the SINGLE STUPIDEST WHITE KID EVER ADMITTED to UC Berkeley or Boston Latin or UT Austin??? That girl will be a laughingstock, too damn under-talented to make it in on her own merits, as all the other accepted white kids did. Nooooo, she had to sue her way in. And not just in a quiet way, she had to sue her way in with an axe to grind, challenging the very right of the university to admit black kids, who, on one single solitary admission criteria, may have not performed as well as she did (they might have had better references, they might have been varsity athletes, they might have been editor of the student newspaper, they might have had some amazing summer internships, they might have written brilliant essays published in prominent magazines — I mean, who knows?). She is publicly admitting, should she win, and gain admission (although I'm not sure a win will guarantee that, because there might be deferred white kids who are still better candidates), that she is the least qualified white student at the school. Why not just follow your acceptance and go to Texas A&M Law School instead? Why? Because she's a bought-and-paid tool for the Libertarian National Front. Period.

  7. The Fisher case is about undergraduate admissions, not law school admission. Did you realize that, David? I couldn't tell. Anyway, isn't the "tell" on Justice Scalia's comment being (no doubt unconsciously) racist, is that he refers categorically to "African-Americans [who] get … into the University of Texas where they do not do well" rather than to "some African-Americans" or some such? He appeared to be saying, and not by any slip of the tongue, that he thought this might be categorically true of all African-American students at U.T. On the other hand, speaking of being careful with words, what do you make of Scalia's introducing the question/comment with "There are those who contend …"? This could be taken as the equivalent of asking U.T's counsel (former SG Gregory Garre), "I'd like to hear your response to the amicus brief that advances the so-called 'mismatch theory.' What do you say to that argument?" Particularly since the Justices by tradition do not commit to a position at argument, but only pose challenging questions, why do you interpret his question as not being equivalent to my rewrite?

    1. It's certainly possible that he was only rephrasing the concerns of Sander, and that your rewrite might get at some of the points, but it still goes beyond what Sander himself thinks ( Moreover, I think he's still being extremely sloppy in his use of value-laden words like "lesser," so even if he's restating someone else's argument, he could–and should–have been more careful. I think the rest of the points are independent of that.

      And yes, I realize this is a case about UG admissions, but Grutter is the last "win" for affirmative action, and I'm a law professor, so I guess I just used those as my examples without making that explicit. Thanks for giving me a chance to clarify.

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