Antonin Scalia has been a public critic of affirmative action since at least 1979, when the Washington University Law Review published his modest proposal of a “Restorative Justice Handicapping System.” Scalia’s position, simply put, is that the government should not engage in racial discrimination, a position reflected in numerous opinions authored by Scalia. There are many adjectives that may legitimately applied to such a position; “racist” is not one of them.
None of this stopped Senate Minority Leader Harry Reid from claiming yesterday that Scalia had said “racist things from the bench.” Reid was referring to Scalia’s comments during oral argument on yet another Supreme Court case on affirmative action, this time involving the University of Texas. This is what Scalia said to so agitate Reid: “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.” In other words, Scalia was voicing the common sense notion that students who are admitted to an institution where they do not meet the normal admissions criteria would be better off going to a school where they do meet the normal admissions criteria. This general point has nothing to do with race; Scalia certainly did not suggest that non-blacks who fail to meet the normal admissions criteria would benefit from admission to the University of Texas or anywhere else. But Scalia was relying on more than common sense; he was citing social science research submitted to the Court showing that the supposed beneficiaries of affirmative action are actually harmed by being let into schools whose normal standards they do not meet.
Much has been made of Scalia’s references to “less-advanced,” “slower-track,” and “lesser” schools, but if there were not already general agreement that some schools are in fact “less-advanced” and “slower-track,” there would be no perceived need tor affirmative action. After all, if colleges that are less selective in admissions than the University of Texas were just as good, why worry if Johnny can’t get into UT? (There are, of course, many reasons to question the putative superiority of places like UT, but those reasons do not negate the fact that most people think that schools like UT are better than schools with less exacting admissions criteria.)
What the furor over Scalia’s remarks shows, yet again, is that “diversity” has become a religion to many in our elite, and that those who question any tenet of this new religion will be treated as heretics. Indeed, Harry Reid said that “ideas like [Scalia’s] don’t belong on the Internet, let alone the mouths of public figures.”
Thomas Piatak is a contributing editor to Chronicles: A Magazine of American Culture. He writes from Cleveland, Ohio.