The media, and the task of covering the Supreme Court: a mismatch?

The Washington Post humors the super-silly liberal fantasy of impeaching Justice Scalia for discussing the affirmative action mismatch argument, an argument that 1) was briefed by lawyers in the case at hand, Fisher v. University of Texas; 2) has come up in the Court’s earlier racial preference jurisprudence and been endorsed by fellow Justice Clarence Thomas; 3) has been aired extensively in places like the Washington Post itself without the ceiling caving in. [Valerie Strauss, Washington Post “Answer Sheet”]

Of course the Washington Post itself would be a better newspaper if its writers on relevant beats took the time to read the paper’s own Volokh Conspiracy, which this week has been hosting a series of guest blog posts by Prof. Rick Sander, best known proponent of the mismatch theory.

Some have questioned whether Scalia was proceeding down a path irrelevant to the Court’s eventual ruling on constitutionality. Here is one possible source of relevance, per James Taranto’s discussion: “Kennedy, unlike Scalia and Thomas, endorsed [in an earlier university racial preference case] the premise that those benefits [specifically, educational benefits obtainable from greater diversity] constitute a “compelling interest” that would justify preferences if the other components of the strict-scrutiny test can be met.” Kennedy’s approach leaves open the possibility that this constitutional justification could be refuted by an empirical showing that the net benefits add up to less than a “compelling interest.”


  • To not recognize that the reason “most of the black scientists in this country don’t come from schools like the University of Texas” involves, among other things, a longstanding history of racial disparity from elementary school on up betrays an ignorance (willful or otherwise) of how the world works so profound that it raises some real questions. Does he think that black scientists were rejecting top schools left and right because they didn’t like the colors of their football uniforms? It also ignores the reality of many black students graduating from top schools today and doing great things in their field.

    That’s not to say his comments are necessarily worthy of impeachment, but he has literally identified the problem affirmative action wants to address and decided it is a good thing. It’s certainly reasonable to disagree with affirmative action, but to not recognize the history of racism that got us where we are today is to be willfully blind to reality.

    I’d also posit that a college admissions committee is better qualified to determine whether a given student is likely to succeed at a top school than a Supreme Court Justice.

  • I’m actually more troubled by Ginsburg’s statements re: the Texas “Top-10” plan, and Garre’s admission that holistically selected students, over time, do better than the minority Top-10 students. I infer that means “top-10 plan” admitted students from under-performing minority schools fare more poorly than their peers admitted on either raw talent or the hollistic approach. It seems to me that it is a legitimate question to ask if African and Hispanic American students from underperforming schools are well served by priority Top-10 admission to UT-Austin, where, according to UT Austin’s own data, they are less likely to graduate even than foreign students, American Indians, and Alaskan natives – but that’s not the question at issue before the court.

    Ultimately my objection relates to policy function, not the legality of the programs. At the end of the day, I’m glad the questions were asked and answered – and I continue to doubt the practical utility of trying to “fix” college admissions by hiding the symptom, rather than fixing the schools that feed the problem. But again, that issue isn’t before the court, and isn’t the Court’s mess to fix.

    If UT-Austin loses this, and I suspect they will, the easy justification for the loss would be UT-Austin’s utter failure to present any recognizable standard for what critical mass of diversity is minimally required. Garre did everything he could to avoid saying its a quota established based on a feeling, absent of any scientific studies to back it. He was in a tough spot.

  • I am on the fence about Prof. Sander’s hypothesis.

    However, I wonder how it would look if we examined the other side of discriminatory conduct, i.e., legacy admissions. I would suspect that legacy admissions generally fare worse academically, but they end up ok because, once they have that degree, they are supported by their wealthy families. See, e.g., W.

  • “However, I wonder how it would look if we examined the other side of discriminatory conduct, i.e., legacy admissions. ”

    Legacy admissions present no issue of discrimination for a federal court.

    • Mike,

      I did not say that they provided an issue of discrimination for a federal court. I do think they are discriminatory (there are a lot of things that are discriminatory, but legal) and provide for entrance into college for less qualified applicants.

      Prof. Sander alleges that affirmative action programs provide for entrance into college for less qualified applicants.

      I would like to see a comparison of how the two groups do.

      I would posit that those in affirmative action programs who may be less qualified have two distinct disadvantages when compared to legacy admissions who are less qualified: 1) the schools have an economic incentive to keep the legacy admissions in school, and 2) legacy admissions will fit in better with the current student population.