Supreme Court releases audio of Scalia's comments on African-Americans in universities

By Ariane de Vogue, CNN Supreme Court Reporter | 12/11/2015, 2:45 p.m.
The Supreme Court on Friday released audio of controversial comments made by Justice Antonin Scalia suggesting that some African-Americans might ...
Associate Justice Antonin G. Scalia portrait U.S. Supreme Court

And as for the lawyer who Scalia was addressing, Gregory S. Garre, he took the question in stride and was quick to respond forcefully. Garre, the former solicitor general in the George W. Bush administration, is defending the University of Texas against a challenge from Abigail Fisher, a white woman from Texas who is suing the university arguing she was denied admission based on her race.

"Frankly, 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 in response to Scalia.

Garre has defended the university before the court on two separate occasions. Like others immersed in the affirmative action debate, he likely recognized that Scalia was referring to the controversial "mismatch" theory popularized by UCLA law professor Richard Sander and legal journalist Stuart Taylor Jr. in their book, "Mismatch: How Affirmative Action Hurts Students It's intended to Help, and why Universities won't admit it." They filed a brief in the case, as did Gail Heriot of the University of San Diego School of Law.

"Research indicates that students who attend schools where their entering academic credentials put them towards the bottom of the class are less likely to succeed then similarly-credentialed students attending schools where their academic credentials more closely 'match' the typical student's," Heriot wrote.

Heriot was not in court to hear Scalia, but she read a transcript of arguments and she defends Scalia's comments. "He was trying to articulate the extensive literature that shows race-preferential admission policies end up hurting rather than helping their intended beneficiaries, especially in the area of science and engineering," she said afterwards.

"We do ourselves a great disservice when we jump all over people for failing to phrase a question in the best possible way," Heriot added.

The first time the Fisher case was heard by the court in 2012 the justices issued a very narrow opinion and sent the case back down to the lower court to take another look.

In a concurring opinion, Thomas echoed the mismatch theory. "The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched," Thomas wrote. "But, as a result of the mismatching, many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete" he said.

Thomas, and his other eight colleagues all attended elite universities, a point not lost on Nelson, who took Scalia's comment to also be a dig at historically black colleges and universities.

"In additon to denigrating an entire group of students, he also denigrated many of the institutions that have successfully served African Americans when a majority of the institutions in this country would not," she said.