Edelman: Scalia's comments should spur new talking point for presidential candidates

Although politics and Islamophobia dominated the news of the past two weeks, the Supreme Court may have unwittingly created an important issue for next year's presidential election as it heard for the second time a case on affirmative action, Fisher v. University of Texas.

The case deals with whether Abigail Fisher, a white woman had been denied admission to UT in 2008 because that school took race into consideration as a factor for acceptance. Because of demographic patterns, most of Texas' high schools are racially segregated. To obtain a culturally and racially diverse student body, the state instituted a "top 10 percent" admission policy: seniors placing in the top decile of their high school's graduating class were automatically admitted to the university. UT also considered several academic and nonacademic factors, including leadership qualities, family circumstances and race in evaluating applicants who failed to meet automatic application criteria. Fisher's GPA was too low to qualify for automatic acceptance, so she applied and was rejected under those broader general admission criteria.


She appealed her rejection in court, arguing that because race was a factor in determining acceptance, she had been discriminated against because she was not a racial minority. She lost her case in the 5th District appellate court, which ruled that the school's admissions policy was compliant with existing regulations.

Fisher appealed to the Supreme Court, which sent the case back to the 5th Circuit appellate court for further fact-finding. Again, the appellate court found for UT, and again, she appealed to the Supreme Court, which heard her case last week.

With that background, Justice Antonin Scalia's comments from the bench created considerable controversy. Scalia did not address affirmative action. He asked whether minority students even belonged in elite universities.

"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. 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. 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."

Scalia would not have raised an eyebrow if his comments advocated better quality in predominantly black or Hispanic secondary schools. But that wasn't what he was saying. His remarks are a misapplication of the "mismatch theory," which states that evolutionary traits helping humans survive in hunter-gatherer times don't contribute to present-day survival. For example, humans evolved to prefer fats and sweets because their high-calorie content contributed to survival at a time when obtaining nutrition was no easy task; in today's world, said trait contributes to increased rates of diabetes. His injudicious comments make it clear he sees no benefit to society from equal academic opportunity.

It was just over one month ago that the president and chancellor of the University of Missouri resigned over allegations that racism was so much a part of the university's culture, its football team threatened to forfeit a game. Later in November, the Los Angeles Times listed at least a dozen other universities planning to implement reforms to address issues of racism on their campuses. Just as the antiwar movement fueled campus unrest in the 1960s, an issue that should have been settled many times over now threatens to spark widespread student activism. And Scalia's failure to exercise good judgment will not help.

Scalia's remarks and the outcome of this Supreme Court case will be remembered when voters select the next president. A presidential candidate who ignores the perception of racial inequality does so at his own peril. And a presidential candidate whose remarks contribute to a sense of racial intolerance imperils the nation.

Mitch Edelman writes from Finksburg. Email him at mjemath@gmail.com.