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Why Justice Scalia thinks affirmative action hurts black students, and why he’s wrong

Scalia is one of the Supreme Court's most implacable foes of affirmative action.
Scalia is one of the Supreme Court's most implacable foes of affirmative action.
Chip Somodevilla/Getty Images
Libby Nelson is Vox's policy editor, leading coverage of how government action and inaction shape American life. Libby has more than a decade of policy journalism experience, including at Inside Higher Ed and Politico. She joined Vox in 2014.

During the Supreme Court's hearing on the Fisher v. Texas affirmative action case Wednesday, Justice Antonin Scalia argued that maybe it's a good thing for black students to be kept out of the University of Texas because they could go to a "less advanced school, a slower-track school where they do well."

Scalia's words shocked many people. The New York Daily News put his "racist rant" on the cover:

The remarks came as the justices weighed Fisher, a case challenging the University of Texas at Austin's policy of considering race when admitting some of its students.

Scalia wasn't making up his objection from the bench. He was drawing from a frequent conservative argument against affirmative action: Students with lesser academic qualifications don't benefit from being admitted to a more competitive college.

But research has found this isn't true. If anything, it's the opposite — students benefit from going to the best college that will admit them, even if their academic credentials are a stretch, because more selective colleges tend to have higher graduation rates.

Scalia argued that black students benefit from a slower-track school

Here's Scalia's argument, in full:

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 ­­— one of the briefs pointed out that most of the black scientists in this 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. 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 think it stands to reason that it's a good thing for the University of Texas to admit as many blacks as possible.

Scalia clearly doesn't believe that admitting minority students is a worthy goal. But some of his views are verifiable — how black students perform at the University of Texas, whether more black scientists attend "lesser" schools, and whether it's true that students who are less academically qualified struggle at elite institutions.

Most of them are false.

There's little evidence for the claim that African-American students "do not do well" at the University of Texas Austin. Black students there have a graduation rate of nearly 70 percent. That's the highest for black students anywhere in the University of Texas system. The other colleges in the system are less selective — what Scalia might call "slower-track schools" — and graduation rates for black students at those universities are much lower.

It's true that graduation rates for black students at UT Austin lag behind those of white students, but that's true nationally; within the context of that national graduation rate gap, black students at the University of Texas aren't faring badly. The university is in the 93rd percentile of graduation rates at public universities for both black and white students.

Scalia's claim is a popular argument against affirmative action — but there's no evidence

College graduation
Studies have found students admitted through affirmative action don't have lower graduation rates.

The argument that black students, or less prepared students of any race, don't end up benefiting from affirmative action because they can't keep up with the work is known as mismatch theory. Supreme Court Justice Clarence Thomas is its most prominent advocate. In his dissent in Grutter v. Bollinger, the court's last high-profile affirmative action case, in 2003, he described elite colleges as "tantalizing" underprepared students with admissions offers.

"These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition," Thomas writes.

The only way to prove the mismatch theory true or false would be to randomly assign minority students with similar academic backgrounds to different colleges and see what happens. That's obviously impractical. But the bulk of research suggests that in fact, students who are admitted to competitive colleges despite being less academically qualified than their peers end up doing fine.

  • Students from underrepresented communities who attend selective colleges are more likely to graduate than students with similar academic qualifications who do not.
  • A 2013 study from two sociologists, Michal Kurlaender of the University of California Davis and Eric Grodsky from the University of Wisconsin, looked at an unusual situation at the University of California. Budget struggles led the university to admit fewer students than it had expected to, and it cut out students who were on the academic margins, weaker than other applicants. Then the budget situation improved, and so students were admitted after all. Those students who barely made the cut performed no worse than students from a similar educational background who were admitted through the normal admissions process.
  • A 2007 study of students whose SAT scores were lower than the average SAT score of other students at their college found those students were not less likely to drop out, although in some cases they earned lower grades.
  • Students from minority groups benefit more, in terms of lifetime earnings, from attending a selective college than their white peers, according to research from economists Stacy Dale and Alan Krueger.

Some research has supported the mismatch idea. A 2012 paper published by the National Bureau of Economic Research found that after California banned affirmative action, graduation rates went up for black and Latino students, and attributed part of the increase to a better academic fit between students and colleges.

But the paper didn't consider that graduation rates for these students were already on an upward trend. An analysis by Matthew Chingos, now a senior fellow at the Urban Institute, found that graduation rates grew less than they otherwise would have if the affirmative action ban had not passed. In other words, banning affirmative action ended up holding back minority students.

Mismatch theory is always brought up in the context of affirmative action. But universities admit less academically qualified students for all kinds of reasons — because they're the children of alumni or donors, due to athletic or musical talent, and so on. There isn't nearly as much concern about how those students fare, and some research has found they're more likely to drop out than other students, including those admitted through race-based affirmative action.

Historically black colleges do produce more black scientists

Scalia was right about one thing: Many black scientists don't graduate from big public research universities like the University of Texas.

But that's not because they struggle to keep up with the work. It's because historically black colleges punch far above their weight when it comes to enrolling and graduating black science majors.

Nationally, black students are 11 percent of the undergraduate population, but they make up only 9 percent of degree recipients in science, technology, engineering, and mathematics, known as STEM.

Fewer than 10 percent of black college students are enrolled at historically black colleges and universities, and those colleges typically have smaller endowments and fewer resources.

Yet one-third of black students who received an undergraduate degree in math or statistics did so at an HBCU. So did 37 percent of black students who received a degree in the physical sciences. Among black students who went on to earn a PhD in the STEM fields — a tiny slice of PhD recipients — more than one-third started their education at a historically black college.

This doesn't mean historically black colleges are "lesser schools" or "slower-track schools," as Scalia implies. It suggests that they might have something to teach the University of Texas about diversity in the sciences.

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