UT lawyer had the perfect response when Justice Scalia suggested some blacks go to a 'slower-track school'

ScaliaGetty Images/Spencer PlattJustice Scalia at a Columbus Day parade.

During oral arguments Wednesday in a potentially game-changing affirmative action case, Supreme Court Justice Antonin Scalia seemed highly sceptical of a University of Texas at Austin policy that considers race as one factor in admissions for some students.

“There are ­­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,” Scalia said Wednesday, according to the Supreme Court transcript.

Scalia continued speaking at length before Gregory Garre, a lawyer for UT-Austin, had a chance to tell him that now is not the time to “roll back student body diversity in America.”

“[F]rankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools,” Garre said.

Scalia, an outspoken conservative justice, mentioned an amicus brief filed in the case involving UT-Austin to back up his argument — though it’s not clear which of the dozens of briefs filed in the case he was referring to.

“One of ­­one of the briefs pointed out that ­most of the ­­most of the black scientists in this country don’t come from schools like the University of Texas,” Scalia said. “They come from lesser schools where they do not feel ­­that they’re being pushed ahead in classes that are too fast for them.”

Scalia continued speaking, apparently addressing Garre’s concern that diversity “plummeted” at schools that had stopped considering race in admissions.

“I’m just not impressed by the fact that ­ the University of Texas may have fewer [black students without affirmative action]. Maybe it ought to have fewer
,” Scalia continued, emphasis ours. “And ­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 case at issue focuses on the admissions policy UT-Austin, which automatically admits the top 8% of students from every high school in the state. (The plan initially allowed the top 10% and is still referred to as the “Top-10 plan.”)

Seventy-five per cent of students get in that way, and the remaining students are admitted through a holistic admissions process that considers a number of factors — including extracurricular activities and race.

Texas native Abigail Fisher — who was rejected by UT in 2008 — is challenging the school’s use of race for students who aren’t accepted through the Top-10 plan. Fisher claims that UT at Austin’s policy violates the Equal Protection Clause of the 14th Amendment — and that the school admitted minority students who were less qualified than she was.

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