Scalia: Good Schools May Be Too Hard For Blacks

[RattlerGator]

Scalia *is* a titan, it's patently absurd to claim otherwise. You may think him wrong; that has nothing to do with the assessment.

And the question (unsurprisingly) isn't as framed -- no one, let alone Scalia, is saying "good" schools are too hard for black students. The point is that engaging in a form of affirmative action that allows for wide differences in standard achievement from a significant cadre of minority students generates consequences that could have been (and were) logically anticipated. Thomas Sowell has a good, plain column on it today:

http://www.nationalreview.com/article/428491/justice-scalia-affirmative-action-minority-students

Well-intentioned white people (who often operate from their own sense of superiority while decrying that found in others) have wreaked havoc on, and within, the black community. Many, many alumni of Florida A&M will (in their more honest moments) admit this. African American academic achievement (or the lack thereof) is a complicated discussion, one certainly involving significantly more than aptitude questions. A not-insignificant number of black kids are much more prepared to deal with challenging academics but score significantly lower than black peers who are remarkably UNPREPARED for the real rigors of a college classroom. One is (from my very biased experience) much more able to make blanket "success" assessments with white students based on their standardized scores than one is able to do with black students.

One thing is for certain: the discussion on this subject is neither aided nor advanced in the slightest by crazy caricatures of Justice Scalia, especially when he has both logic and practical experience on his side.

[BridgeTroll]

the discussion on this subject is neither aided nor advanced in the slightest by crazy caricatures of Justice Scalia

That will not stop the smear campaign...

[FlaBoy]

Not even in the top 1000

Agree to disagree 

I can see you disagreeing with him not being in the top 1000. But seriously top 10 legal minds of all times?  Like more than Hammurabi, Moses, Lycurgus, Solon, Octavian (Augustus Caeser) Justinian, St Paul, St. Augustine, William Blackstone, The Framers of the Constitution, Napoleon Bonaparte, 

Scalia deserves a place in the top 10 because he doesn't like abortion, says racy things about the blacks, and is conservative?  Thats a pretty low bar, don't you think?

Perhaps this tells more about your world perspective than anything useful about the status of legal minds throughout history?

I was thinking more the American judiciary when I made that statement. Comparing the American judiciary to Moses or Hammurabi is apples to oranges. Blackstone is definitely the most influential of the Common Law era (which continues today). The Church influenced so much of the Common Law that of course St. Paul may be the most influential of all time. However, again, that is hard to compare to American judiciary. Within the American judiciary, you most likely have Marshall, Story, Holmes, Taney, Brandeis, Warren, Black, Jackson, Cardozo and most certainly Rehnquist. Learned Hand would get attention and the legal community loves Posner's formulas in recent decades. I think Justice Kennedy is making a run at one of the most influential of the past quarter century due to the importance of his decisions, although underwhelming in his legal frameworks and paradigms at points.

The Court is really divided up into Four eras: 1) Foundational Era from the Court's Beginning to post Civil War - this era created the precedence of Judicial Review and Federal Supremacy. 2) Industrial/Conservative Court Era - (1870) Post Civil War Pro-Business Courts that limited Federal Power up until Court Packing proposed. 3) New Deal/Court Packing Era (1937 to 1986) - The Conservative Supreme Court's moderates were swayed out of self preservation to stop striking down New Deal plans which lead to expansive federal powers of commerce clause, then Warren and Burger Courts with new fundamental rights/substantive due process paradigm. 4) Reagan Revolution/State's Right's Courts (1986 on) - Rehnquist and Scalia spearheaded move of the Court to limit expansive federal commerce clause power and empower state's rights paradigm.

The last is why most would put Rehnquist on the list, but Scalia's appointment to the bench which coincided with Rehnquist's Chief Justice tenure and the sheer number of decisions and influential dissents he has written would definitely put him in the Top 20 IMO of influential in the American judiciary. But again, agree to disagree.

[PeeJayEss]

Justices like John Marshall, Earl Warren, Louis Brandeis, Oliver Wendell Holmes all pop to mind.

These just popped to your mind?

The point is that engaging in a form of affirmative action that allows for wide differences in standard achievement from a significant cadre of minority students generates consequences that could have been (and were) logically anticipated.

Emphasis mine. Please elaborate on these consequences. We have evidence that standardized testing scores are biased, we also have evidence that different types of affirmative action have positive outcomes for those benefited. What we are lacking is any evidence that the specific affirmative action in this case leads to worse outcomes for those that benefit, which is the entire hypothesis of matching "theory."

[finehoe]

That will not stop the smear campaign...

The only ones being "smeared" are minority students at 'good' schools.

[FlaBoy]

Not even in the top 1000

Agree to disagree 

I can see you disagreeing with him not being in the top 1000. But seriously top 10 legal minds of all times?  Like more than Hammurabi, Moses, Lycurgus, Solon, Octavian (Augustus Caeser) Justinian, St Paul, St. Augustine, William Blackstone, The Framers of the Constitution, Napoleon Bonaparte, 

Scalia deserves a place in the top 10 because he doesn't like abortion, says racy things about the blacks, and is conservative?  Thats a pretty low bar, don't you think?

Perhaps this tells more about your world perspective than anything useful about the status of legal minds throughout history?

I was thinking more the American judiciary when I made that statement. Comparing the American judiciary to Moses or Hammurabi is apples to oranges. Blackstone is definitely the most influential of the Common Law era (which continues today). The Church influenced so much of the Common Law that of course St. Paul may be the most influential of all time. However, again, that is hard to compare to American judiciary. Within the American judiciary, you most likely have Marshall, Story, Holmes, Taney, Brandeis, Warren, Black, Jackson, Cardozo and most certainly Rehnquist. Learned Hand would get attention and the legal community loves Posner's formulas in recent decades. I think Justice Kennedy is making a run at one of the most influential of the past quarter century due to the importance of his decisions, although underwhelming in his legal frameworks and paradigms at points.

The Court is really divided up into Four eras: 1) Foundational Era from the Court's Beginning to post Civil War - this era created the precedence of Judicial Review and Federal Supremacy. 2) Industrial/Conservative Court Era - (1870) Post Civil War Pro-Business Courts that limited Federal Power up until Court Packing proposed. 3) New Deal/Court Packing Era (1937 to 1986) - The Conservative Supreme Court's moderates were swayed out of self preservation to stop striking down New Deal plans which lead to expansive federal powers of commerce clause, then Warren and Burger Courts with new fundamental rights/substantive due process paradigm. 4) Reagan Revolution/State's Right's Courts (1986 on) - Rehnquist and Scalia spearheaded move of the Court to limit expansive federal commerce clause power and empower state's rights paradigm.

The last is why most would put Rehnquist on the list, but Scalia's appointment to the bench which coincided with Rehnquist's Chief Justice tenure and the sheer number of decisions and influential dissents he has written would definitely put him in the Top 20 IMO of influential in the American judiciary. But again, agree to disagree.

Well that would be a conservative's take on supreme court eras, I think.

I think more people would see it  more similar to the following:

1) Pre Marshall Court. (1792-1800) -- Really a formative couple of years as the Justices grappled with the newly created Court.

2) The Marshall Court (1800-1835) -- This Court was characterized by a moderately broad reading of the powers of the federal government and of the Court. Most famous for Marbury vs. Madison, McCulloch v. Maryland, and Barron v. City of Baltimore.

3) The Taney Court (1835-1865) -- This Court strictly construed enumerated powers. Most famous for the Dredd Scott case.

4) The Reconstruction Era (1865-1895) -- This era saw the Supreme Court strictly construed the newly enacted Civil War Amendments as granting few new powers to the Court or to Congress or placing many restrictions on the states. Most famous for the Slaughter House Cases, the Civil Rights Cases, Plessy v. Ferguson, Hurtado v. California.

5) The Lochner Era (1895-1937) -- This era saw the Supreme Court narrowly interpreting Congressional Powers while broadly interpreting the Fourteenth Amendment's due process clause to strike down many state laws regulating economic activities including minimum wage and maximum hours laws. As the name of the era notes, the most famous decision of this era was Lochner v. New York. There was some increased enforcement of the Bill of Rights against the states.

6) The New Deal Court (1937-1947) -- This era saw the repudiation of Lochner in a series of decisions. Part of this repudiation saw the rise of the current very broad view of national powers to enact legislation. While the Court noted the possibility of continued activism to enforce the Bill of Rights and the equal protections clause (most famously in the Carolene Products decision), there were only a handful of such cases in this era, mostly the Jehavah Witnesses Flag cases.

7) The Warren Court era (1947-1973) -- While this era is typically named after Chief Justice Earl Warren, the era actually began before his appointment and continued after his retirement. This case saw great activity in broadly interpreting the Constitution to prevent racial discrimination and to enforce the principles of the Bill of Rights. Cases from this era include Brown v. Board of Education, Gideon v. Wainwright, Miranda, Roe v. Wade, the new Civil Rights Cases, Lemon, the Pentagon Papers, etc.

Post-Warren Court (1973-present) -- The general trend since 1973 has been to nibble at the decisions of the Warren Court era. There have been no major decisions overturned (except Furman). Instead, the general tendency as been decisions to narrow the reach of the broad decisions of the Warren Court era.

I can't think of a single legal reason to label anything since Warren as anything in particular.  Perhaps the Roberts Court for the expansion of civil rights?  But even then not really a new legal approach or anything distinctive.

Others might describe the Court within three main eras:

The first era is institutional definition which lasted from 1790-1865, the goal during this era was to define and strengthen the American Government. The main actor in this era was John Marshall.

The second era is commerce and social welfare which lasted from 1865-1937, this era marks the development of legal, political, and social problems that occurred due to the urbanization that our nation was undergoing.

The third era is civil rights and liberties which took place from 1937 to the 1990's. This era focused on individuals rights and the way the constitution is interpreted by individuals.

I think this broader definition is accurate, but for the purposes of this discussion, I think the former listing is more accurate.

Post Warren has been an interesting mishmash of undercutting the legal theories of the Warren Court, followed by validation of the same theories.  For example, the arguments underlying Civil Rights protections being extended to LGBT people, following the opinions of the court on Affirmative Action.  Whilst the specific laws emanating from the civil rights era might be being curtailed or modified, they are still in the process of being expanded to new American generations.

Nothing from the Rehnquist Court has resulted in any such application of new (or even renewal of old) legal assumptions.  Again, his chief attribute that makes him a hero to conservatives seems to have been the political and religious preferences in his personal life.  Not his real impact or even his longterm effectiveness as a judicial leader.

I think Roberts may have the possibility of being considered an important Chief Justice simply because of the thorny new territory being carved into legal theories arising from our technology.

He is a young man and his court will hear the arguments on the meaning of sentience, non human personhood, genomic sequencing as property rights, and a myriad of other issues that have literally never been important in the consideration of legal theory.  His Court will deal the ground breaking opinions on previously unheard of legal issues. 

But Rehnquist? Scalia?

meh.

Well, I was just regurgitating what my professor of Constitutional law told my old Con law class. My professor, who I can promise you was far far from conservative, and who also wrote our casebook, divided the eras up as I displayed. All you really did was subdivide eras into some more detail but that's fine. Anyhow, again, agree to disagree but SCOTUS has definitely limited the power of the federal government in the past 30 years, when it only helped it expand in the previous 50 years.

[BridgeTroll]

That will not stop the smear campaign...

The only ones being "smeared" are minority students at 'good' schools.

http://www.realclearpolitics.com/articles/2015/12/15/attacking_the_truth_129041.html

Attacking the Truth

By Thomas Sowell
December 15, 2015

Attacking the Truth

Among the many sad signs of our time are the current political and media attacks on Supreme Court Justice Antonin Scalia, for speaking the plain truth on a subject where lies have been the norm for years.

The case before the High Court is whether the use of race as a basis for admitting students to the University of Texas at Austin is a violation of the 14th Amendment's requirement for government institutions to provide "equal protection of the laws" to all.

Affirmative action is supposed to be a benefit to black and other minority students admitted with lower academic qualifications than some white students who are rejected. But Justice Scalia questioned whether being admitted to an institution geared to students with higher-powered academic records was a real benefit.

Despite much media spin, the issue is not whether blacks in general should be admitted to higher ranked or lower ranked institutions. The issue is whether a given black student, with given academic qualifications, should be admitted to a college or university where he would not be admitted if he were white.

Much empirical research over the years has confirmed Justice Scalia's concern that admitting black students to institutions for which their academic preparation is not sufficient can be making them worse off instead of better off.

I became painfully aware of this problem more than 40 years ago, when I was teaching at Cornell University, and discovered that half the black students there were on some form of academic probation.

These students were not stupid or uneducable. On the contrary, the average black student at Cornell at that time scored at the 75th percentile on scholastic tests. Their academic qualifications were better than those of three-quarters of all American students who took those tests.

Why were they in trouble at Cornell, then? Because the average Cornell student in the liberal arts college at that time scored at the 99th percentile. The classes taught there -- including mine -- moved at a speed geared to the verbal and mathematical level of the top one percent of American students.

The average white student would have been wiped out at Cornell. But the average white student was unlikely to be admitted to Cornell, in the first place. Nor was a white student who scored at the 75th percentile.

That was a "favor" reserved for black students. This "favor" turned black students who would have been successful at most American colleges and universities into failures at Cornell.

None of this was peculiar to Cornell. Black students who scored at the 90th percentile in math had serious academic problems trying to keep up at M.I.T., where other students scored somewhere within the top 99th percentile.

Nearly one-fourth of these black students with stellar qualifications in math failed to graduate from M.I.T., and those who did graduate were concentrated in the bottom tenth of the class.

There were other fine engineering schools around the country where those same students could have learned more, when taught at a normal pace, rather than at a breakneck speed geared to students with extremely rare abilities in math.

Justice Scalia was not talking about sending black students to substandard colleges and universities to get an inferior education. You may in fact get a much better education at an institution that teaches at a pace that you can handle and master. In later life, no one is going to care how fast you learned something, so long as you know it.

Mismatching students with educational institutions is a formula for needless failures. The book "Mismatch," by Sander and Taylor is a first-rate study of the hard facts. It shows, for example, that the academic performances of black and Hispanic students rose substantially after affirmative action admissions policies were banned in the University of California system.

Instead of failing at Berkeley or UCLA, these minority students were now graduating from other campuses in the University of California system. They were graduating at a higher rate, with higher grades, and now more often in challenging fields like math, science and technology.

Do the facts not matter to those who are denouncing Justice Scalia? Does the actual fate of minority students not matter to the left, as much as their symbolic presence on a campus?

[finehoe]

Thomas Sowell?  The guy who's made a career out of denouncing affirmative action?  He's certainly an unbiased source.  LOL.

[BridgeTroll]

Thomas Sowell?  The guy who's made a career out of denouncing affirmative action?  He's certainly an unbiased source.  LOL.

Rofl... Yeah... I mean what would a prof at Cornell know... okay... how bout one of your Huffpo guys...

http://www.huffingtonpost.com/geoffrey-r-stone/justice-scalia-affirmativ_b_8815062.html

Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor of Law, University of Chicago


Justice Scalia, Affirmative Action and the Perils of Oral Argument
  Posted:  12/15/2015 8:34 pm EST    Updated:  12/15/2015 8:59 pm EST

Ever since the oral argument last week in the Supreme Court in Fisher v. University of Texas, which involves the constitutionality of the University of Texas' affirmative action program, Justice Antonin Scalia has been castigated and excoriated by commentators, mostly on the left, for asking the attorney for the University of Texas about the so-called "mismatch" objection to affirmative action. In Justice Scalia's words: "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 less -- a slower-track school where they do well."

Although I often disagree with Justice Scalia, and although I emphatically disagree with him about the constitutionality of affirmative action, the outrage and condemnation sparked by this comment is completely unwarranted. Justice Scalia's comment, which asked about the merits of an argument frequently made against affirmative action, and which was made specifically in briefs before the Supreme Court in this very case, was perfectly appropriate. As is often the case, Justice Scalia might have helped himself by framing his comment in a more sensitive manner. But the plain and simple fact is that his question gave the attorney for the University of Texas an opportunity to respond to one of the central arguments made against the constitutionality of affirmative action.

The "mismatch" argument runs more or less as follows. Colleges and universities generally admit students based on their academic achievements and potential, as reflected in their standardized test scores, their high school GPAs, and the nature of the courses they took in high school. These criteria have been shown to be reasonably good at predicting academic success at the college level.

When a college employs affirmative action, it typically admits some students who would not otherwise be admitted based on their academic credentials because their presence would add diversity to the institution and to the student body. Predictably, those students generally do less well academically in college, on average, than most students who are admitted solely on the basis of academic potential. This phenomenon may be exacerbated by a variety of factors, including a sometimes less than congenial or supportive atmosphere for minority students on campus, but it is a perfectly predictable consequence of admitting students, who would not otherwise be admitted on the basis of academic potential, whether because of affirmative action, because they are good football players, because they play the oboe, or because they are the children of potentially generous donors.

In the affirmative action context, as in the other settings, this raises the question whether the college is exploiting the students for its own ends -- to achieve diversity -- at the expense of the students' own best interests. Put simply, is a student better off graduating in, say, the bottom 20 percent of a first tier college or in the top 20 percent of a second tier college?

This is not an easy question. If we were discussing your own kid, what would you think?

As a former Dean and Provost at the University of Chicago, I have had this conversation many times over the years with friends and former students who want advice about how to advise their own children. Most often, I've had this conversation with wealthy individuals who know they can get their kids into a top tier college, which hopes someday to receive a large gift in appreciation, but who know from their kids' SAT scores and high school records that, purely on the basis of academic potential, their kids wouldn't get into a top tier college.

What they worry about is the impact on their kids of "being in over their heads." They worry in part about how good an education their kids will actually get if they're in over their heads academically, and they worry in part about the effect of a mediocre college performance on their kids' sense of self-confidence. As highly successful people themselves, they understand the importance of self-confidence. They worry that, if their kids barely get by in college, they will have their self-confidence beaten out of them. It's often a tough call.

This is essentially what Justice Scalia was asking about. A number of social scientists have studied the "mismatch" theory and compared the experience of minority students who are the beneficiaries of affirmative action with those who have not benefited from affirmative action. That is, the idea is to compare the experiences of college students with more or less equivalent academic potential, some of whom attend first tier and some of whom attend second tier colleges.

The results of these studies suggest that the concern that the intended beneficiaries of affirmative action are actually being harmed rather than helped is largely unfounded. In comparing these two groups, the data suggest that the students who attend the first tier schools do less well in terms of academic performance in college, but that they are as likely to graduate, as likely to have a satisfactory college experience, and as likely -- indeed, more likely -- to get good jobs upon graduation than their peers at second tier schools.

But, of course, there are also social scientists who disagree. Although the weight of authority at the moment appears to be on the side of those who find that affirmative action does, indeed, benefit its intended beneficiaries, the matter is still open to debate. Moreover, even if the matter were resolved with respect to the average student entering a college in an affirmative action program, this does not mean that every such student benefits from the experience. Depending on the background, self-confidence, and makeup of the student, the experience can either be a good one, or a not so good one. Indeed, that's precisely what my rich friends worry about with respect to their own kids.

Now, in my own view, none of this has anything to do with the constitutionality of affirmative action. Rather, these are interesting details that should be taken into account by individual students and their families in making individual decisions for themselves. But my view of affirmative action, unfortunately, is not the view of the Supreme Court. In the Supreme Court's view, it is unconstitutional for public institutions of higher education to take race into account in making admissions decisions unless they have a compelling interest for doing so. Even the possibility that the mismatch theory is correct, at least for some students, might be sufficient, under that standard, to invalidate affirmative action programs. That is bad constitutional law, but as long as it is the law of the land it is perfectly appropriate and sensible for a justice to ask about this.

It is time that we stopped condemning each other for asking hard questions, however much we might not like them.

[BridgeTroll]

Although I often disagree with Justice Scalia, and although I emphatically disagree with him about the constitutionality of affirmative action, the outrage and condemnation sparked by this comment is completely unwarranted. Justice Scalia's comment, which asked about the merits of an argument frequently made against affirmative action, and which was made specifically in briefs before the Supreme Court in this very case, was perfectly appropriate.

[FlaBoy]

That article above hits it right on the head. It is what I was trying to say at the beginning of this discussion. It was oral arguments and Scalia was addressing an issue in an amicus brief. He did what ALL appellate judges do and probed the attorney using the other side's arguments. He could have been more eloquent and distinguished his views from the argument, but I think the attorney, who also read those briefs, understood what Scalia was doing, even if Al Sharpton and the twitterverse did not. Really level headed and well done article.

If the article above hits it right on the head, then finehoe pointed out to you within the first few exchanges that the so called 'mismatch theory' is largely unfounded.

From the article you just cited as authoritatively stating the case:

The results of these studies suggest that the concern that the intended beneficiaries of affirmative action are actually being harmed rather than helped is largely unfounded. In comparing these two groups, the data suggest that the students who attend the first tier schools do less well in terms of academic performance in college, but that they are as likely to graduate, as likely to have a satisfactory college experience, and as likely -- indeed, more likely -- to get good jobs upon graduation than their peers at second tier schools.

Which circles us back around to the problem of a sitting supreme court justice using an unfounded race theory to discuss affirmative action.

That's fine. If the argument is raised, it is the Judge or Justice's job to get the counterargument from the Attorney during oral arguments. It is his or her job to persuade the Court of those facts.

[finehoe]

That's fine. If the argument is raised, it is the Judge or Justice's job to get the counterargument from the Attorney during oral arguments. It is his or her job to persuade the Court of those facts.

But nobody raised it. Read for yourself:  http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-981_4h25.pdf

Perhaps somebody did raise it in a brief (of which there are almost 100, so why is that one singled out), but no one raised it in the oral arguments prior to Scalia bringing it up.