Justice Scalia suggests black college students should attend 'a less-advanced... slower-track school'

Justice Antonin Scalia drew audible gasps with his thoughts on blacks in colelge
(Image credit: Alex Wong/Getty Images)

On Wednesday, the Supreme Court heard oral arguments in Fisher v. University of Texas, in which a white female Texan, Abigail Fisher, sued the University of Texas, claiming she wasn't admitted in 2008 because of affirmative action — UT uses race as one factor in accepting a quarter of incoming students (the other three-quarters are automatically accepted based on academic performance in Texas high schools). This is the second time the Supreme Court has heard the case, and based on the comments from the justices, it appears that a majority is ready to find the UT admissions system — and all affirmative action at U.S. colleges and universities — unconstitutional.

One set of remarks "drew muted gasps in the courtroom," The New York Times reports. University of Texas lawyer Gregory G. Garre had just finished arguing that the black population at "selective" schools "plummeted" after affirmative action was ended, when Justice Antonin Scalia stepped in, according to a court transcript:

There are those who contend that it does not benefit African­-Americans to — ­ 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. One of ­­— one of the briefs pointed out that ­­— that most of the — ­­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 ­­— that they're being pushed ahead in ­—­ in classes that are too ­­— too fast for them. I'm just not impressed by the fact that —­­ that the University of Texas may have fewer (black students). Maybe it ought to have fewer. [Justice Scalia]

Garre responded that "this court heard and rejected that argument, with respect, Justice Scalia." He added that, "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." The key vote in the case will be, as he often is, Justice Anthony Kennedy, who has never voted in favor of affirmative action.

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The Supreme Court does not allow cameras at oral arguments, but audio of Scalia's comments will be released on Friday, legal analyst Jeffrey Toobin noted on CNN after the transcript was released. Scalia was citing an amicus brief filed in the case, he added, but "he has really, almost intentionally, become the 'get off my lawn' justice." You can watch that piece of legal analysis below. Peter Weber

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