Yesha Callahan

Supreme Court Justice Scalia On Affirmative Action: Some Black Students Need ‘Slower-Track’ Schools

Orange County News - Aug 29, 2005

The Supreme Court heard oral arguments in Fisher v. University of Texas, a case that could end Affirmative Action policies at universities across the nation. While the court is predictably divided along partisan lines, Justice Antonin Scalia argued some minority students need “slower-track” schools.

After Gregory Garre, the solicitor for the University of Texas, argued diversity at the institution would plummet if it were no longer allowed to use race as one factor in admission decisions, Scalia gave the most cringe-worthy response of the day.

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 the 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 that the University of Texas may have fewer [Black people]. Maybe it ought to have fewer. And maybe some– you know, when you take more, the number of Blacks, really competent Blacks, admitted to lesser schools, turns out to be less. And ­­I­ don’t it think stands to reason that it’s a good thing for the University of Texas to admit as many Black as possible.

Ironically, while Scalia argued that so-called less qualified Black students shouldn’t be admitted to the University of Texas, the plaintiff in the case, Abigail Fisher, who claimed she was passed over for admission in favor of minority students, was not a stellar applicant either.

ProPublica broke it down:

Fisher said in news reports that she hoped for the day universities selected students “solely based on their merit and if they work hard for it.” But Fisher failed to graduate in the top 10 percent of her class, meaning she had to compete for the limited number of spaces up for grabs.

She and other applicants who did not make the cut were evaluated based on two scores. One allotted points for grades and test scores. The other, called a personal achievement index, awarded points for two required essays, leadership, activities, service and “special circumstances.” Those included socioeconomic status of the student or the student’s school, coming from a home with a single parent or one where English wasn’t spoken. And race.

Those two scores, combined, determine admission.

Even among those students, Fisher did not particularly stand out. Court records show her grade point average (3.59) and SAT scores (1180 out of 1600) were good but not great for the highly selective flagship university. The school’s rejection rate that year for the remaining 841 openings was higher than the turn-down rate for students trying to get into Harvard.

As a result, university officials claim in court filings that even if Fisher received points for her race and every other personal achievement factor, the letter she received in the mail still would have said no.

The court is expected to make a decision in the case next summer, but based on today’s arguments, court watchers believe the result may not turn out well for Affirmative Action supporters.

  1. December 9, 2015 - Reply

    Racism erodes the mind

    • December 9, 2015 - Reply

      @i mean


    • December 10, 2015 - Reply

      @i mean

      My only comment is that I love your icon

      • December 10, 2015 - Reply


        Thank you

  2. December 9, 2015 - Reply

    how dare he say some schitt like that, and what did “our” dear Clarence Thomas say in regard to this off-the-cuff remark?

    • December 12, 2015 - Reply


      That’s what i want to know?

  3. December 10, 2015 - Reply

    can he be impeached ….

    • December 10, 2015 - Reply


      No, he’s there for life.

      • December 10, 2015 - Reply

        @Catherine Banks


  4. December 10, 2015 - Reply

    Scalia is known for his bigotry and racism. Scalia is wrong and just plain disrespectful. I wonder what Clarence Thomas has to say since Thomas benefited from affirmative action before. The University of Texas’ affirmative action plan is very moderate and takes many things into consideration not just race. There are white legacies, and other benefits given to the wealthy, yet Scalia doesn’t criticize those things. I respect people who want affirmative action based on race and other factors (which I agree with) and those who want affirmative action based solely on socioeconomic factors too.

    • December 10, 2015 - Reply

      Well said & you know he is mum on that issue, he has amnesia with regards to the AA that assisted him. In his mind, he believes his merits got him to where he is today, when he knows full well his hue alone would have kept him from thriving in this “great and fair” country of ours.

      • December 10, 2015 - Reply


        Yes, he or Clarence Thomas is totally silent. He ought to speak out against such hate as a black person, but he doesn’t. He benefited from the assistance of African Americans and now he is a dedicated reactionary. We don’t live is a total meritocracy in society and that fact is what the conservatives, who abhor affirmative action, fail to realize. There should always be ways to end discrimination and oppression, so justice for all is made into a reality.

        • December 10, 2015 - Reply

          Amen Brotha! well said, but he has his white wife, mixed kids and plum job for life. Sadly by his actions over the years, he’s clearly shown he is not one of “us.” I wish some of Thurgood Marshall had rubbed off on him!!

          • December 10, 2015 - Reply


            We can tell that he would not marry a Sister. The way that he treated Anita Hill shows his agenda all along. We may share the same skin as him, but he a’int kin to us. For him to be silent when Scalia slanders black people shows his cowardice and his submissiveness. I do wish that he wakes up. Thurgood Marshall overtly voted in favor of civil rights, civil liberties, women’s rights, and other human rights.

            • December 10, 2015 - Reply


              Yes, I am not that knowledgeable of all that he did but I know he did allot during the turbulent times in this country (Thurgood). CT is just settling and fitting in, not fighting or caring about others that are still in the struggle for equality, he wants to believe we are all treated fair & just.

              • December 10, 2015 - Reply


                I feel you. Thurgood Marshall helped to desegregate public schools and he was involved in supporting the Miranda rights decision of the 1960’s changed how the police would ask people of their rights. Clarence Thomas is just going through the motions as you have stated. No society is infallible and that is why there is a role of us to agitate for real change in the parameters of society.

    • December 10, 2015 - Reply

      If I remember correctly, many years ago when Thomas first became a justice he stance was against Affirmative Action. There was an uproar at that time from the Black community because that was how he to to where he was.

      • December 10, 2015 - Reply

        @mariah asphalt

        Yes, he opposed affirmative action. Decades ago, he benefited from affirmative action. There was an uproar back then as well.

  5. December 10, 2015 - Reply

    what are we actually angry about?
    his comment or the fact that in today’s society we still need help such as affirmative action because at one point in time, the same government created laws and systems to disenfranchise blacks… he won’t get it because he had a head start.

  6. December 10, 2015 - Reply

    So many things wrong with this argument and this entire case that it isn’t funny. First, who is to say a black student or minority student took her spot? It could be very well another white student took her spot. And the fact that she wasn’t a shoo in to get into the university based on her credentials tells me this is someone crying because their white privilege wasn’t enough so let’s blame someone else. And Scalia sounds like an idiot, this is why supreme court justices shouldn’t be on the bench for life.

    • December 10, 2015 - Reply


      Exactly Sister.

  7. December 10, 2015 - Reply

    “Some blacks need slower track schools.” And so do all racist judges.

  8. December 12, 2015 - Reply

    I wonder what Clarence Thomas thinks about that statement?

  9. December 14, 2015 - Reply

    the bigger issue with this case is that the supreme court in its entire history has NEVER deemed the mistreatment of black Africans in America as ‘unconstitutional’ or upheld the black defendants in any such case brought to it.

    In fact the supreme court upheld Plessy Vs Ferguson and Brown Vs Board of Education was not a case to declare UNEQUAL access to education to be unconstitutional. It only said segregation of schools by race was unconstitutional, which said nothing about the quality of the schools attended by blacks based on their race. And that is the primary issue here historically, which is the quality of education for black folks from Pre Kindergarten all the way to Post Graduate, where white society has always withheld finances and resources from primarily black educational institutions at all levels. Nowhere and no how was that addressed by brown vs board.

    Not to mention that ‘affirmative action’ was not something created by the Supreme court as they have never ruled in any way that the 400 years of slavery and jim crow were unconstitutional. In fact, they upheld the 3/5ths rule as constitutional in many cases, most notably the Dredd Scott decision. So the idea that the supreme court represents justice for black folks is inherently a joke.

    Most of the ‘freedoms’ black folks have in America came from Amendments signed by presidents and legislators, not by the supreme court. And in this case that includes “Affirmative Action”, because technically, the Supreme Court has never ruled that black folks have suffered as a result of any policies or laws created by the government in support of slavery or Jim Crow. And since they never ruled those things as unconstitutional, technically they never ruled that Affirmative Action was necessary or “constitutional”. This just shows that affirmative action as it exists is really nothing in terms of repayment of black folks for any suffering as the fact that most black students are not able to attend the U of T because of the inferior educations they get leading up to it. The best students are always going to get access to these schools no matter what the status of the majority of students is and just saying that those folks wont get denied access as black folks is not really ‘affirmative action’ as in redressing historic inequality.

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