Gone Fishering
By 
I have a piece on today’s oral arguments in Fisher:
Early in the arguments, Scalia asserted that “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.” Scalia’s apparent assumption, albeit one that he attributed to others, that African Americans admitted under affirmative action programs must be unqualified is offensive in itself – and particularly offensive given how marginal the qualifications of the plaintiff, Abigail Fisher, were.
As the 5th Circuit Court of Appeals observed in its opinion upholding the UT affirmative action program, Fisher almost certainly would not have been admitted even if UT used strictly race-neutral admissions criteria. The argument that colleges should not even consider the racial diversity of its student body in order to give white applicants with poor qualifications a very slightly better chance doesn’t strike me as a very compelling one.
And I must have missed Scalia condescendingly suggesting that Fisher would have been better off at a less-demanding school.
Then, responding to arguments that ending affirmative action would make the UT campu less diverse, Scalia asserted that “Maybe it ought to have fewer [African-American students”, adding “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.”
[…]
Worse, as Justice Ruth Bader Ginsburg pointed out in her questions, the Top Ten Percent plan can provide a reasonable facsimile of affirmative action only if the courts assume that de facto school and residential segregation will be persistent.
As she said, Alito’s suggestion would make diversity in higher education “totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education.”
The response of Gregory Garre, who argued on behalf of the University of Texas, to Alito’s line of questioning was also devastating:
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.
UT’s admissions policies should not be premised on the idea that Texas’s children will permanently attend segregated and unequal schools because the supreme court is no longer willing to seriously enforce Brown v Board of Education; their admissions offices should be able to take race into account directly, not indirectly.
More at the link of course.
Among other things, today’s argument is an excellent illustration that Alito is much smarter, or at least much shreweder, than Scalia. Kennedy’s position seems to be that he would like to keep remanding the issue to lower courts until he retires. Alito’s “don’t worry, UT can still be diverse plus liberals are the real racists” line of questions is exactly how you try to keep AMK in the anti-affirmative action fold. Scalia’s drunk-racist-uncle ranting about how perhaps the blacks should be kept out of selective colleges for their own good so that spots for SUPERGENIUSES like Abigail Fisher can be kept open is exactly how to keep Kennedy writing equivocal concurrences if not outright joining the liberal faction.