Matt Rourke / AP

Scalia questions need for integration

Analysis: Supreme Court Justice wonders in Fisher case whether African-Americans belong in the best universities

During Wednesday’s oral argument in the case of Fisher v. University of Texas, Supreme Court Justice Antonin Scalia asked whether most African-American students might be more suited to “less-advanced,” “slower-track” colleges — and in doing so, called into question where the court’s conservative majority stood on racial integration as a broader goal.

Abigail Fisher, who has been out of college since 2012, was originally denied admission to the University of Texas at Austin campus in 2008 under a system that first fills 75 percent of its incoming class based on what is called the “top 10 percent” rule — where the state's high school’s best-performing students are given a spot — and 25 percent by a “holistic” system that factors in race as one of the evaluative criteria. Fisher contends that she would have made the cut if 100 percent of the class had been admitted under the “top 10” rule, a contention the university denies.

The High Court first heard this case in 2012, but sent it back to the 5th Circuit Court of Appeals with instructions to apply more scrutiny to the use of a racial component in the holistic review.

The University of Texas argues that if it went to the structure advocated by Fisher and her legal team, the Austin campus would wind up almost entirely white. But when Justice Scalia heard that point, he essentially asked if that, in itself, was a problem.

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.

“I'm just not impressed by the fact the University of Texas may have fewer [black students]. Maybe it ought to have fewer,” Scalia continued. “I don't think it stands to reason that it's a good thing for the University of Texas to admit as many blacks as possible."

The observations instantly caught the attention of court-watchers and many in the broader media — and they are notable, even from a man who has often made news with comments that would seem highly prejudicial — but it is in the context of questions from some of the other justices where Scalia’s words could signal a major restructuring of the Court’s approach to race.

Chief Justice John Roberts, long an affirmative action skeptic, questioned whether the “small” gains the university saw from a more diverse student body were worth “the extraordinary power to consider race.”

Justice Samuel Alito expressed a faith that guaranteeing admission to the top 10 percent in each high school would be race-neutral on its face, but would still guarantee a degree of diversity in college admissions. That contention is counter to the finding in the original 5th Circuit decision on the Fisher case, and, as Gregory Garre, a former U.S. Solicitor General and the attorney representing the University of Texas observed, it was a solution that only worked if the state perpetuated “a system in which not only are minorities going to separate schools, they’re going to inferior schools.”

Justice Ruth Bader Ginsburg seemed to agree. Under Alito’s assumption, diversity at the university level is, she said, “totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education.”

As with many cases before the Roberts court, attention has turned to Justice Anthony Kennedy. Kennedy has a long history of voting to upend affirmative action plans and reject race as a determining factor in a host of pro-diversity programs. As with the 2013 decision on Fisher, Kennedy again appeared to have doubts that there was enough evidence presented to pass final judgment on the Texas plan.

In the Supreme Court’s previous decision, it left intact the finding that race can be a factor when absolutely necessary to obtain diversity as the end goal. The court could reject the appeal or remand this case back to the 5th Circuit again and keep that precedent in place. But if the end goal itself is in question, as the comments of Alito and, more emphatically, Scalia imply, then the foundation for a long list of decisions on diversity initiatives could be back in play.

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