Scalia is not [not a racist D-Bag] The null hypothesis investigation of the transcript of Fisher v. University of Texas at Austin

  1. The media and the politicians are calling out Justice Scalia on his racism.  See, for example, or
  2. I tried the null hypothesis on this one.  My hypothethical was:  “Justice Scalia is NOT a racist d-bag” and read the transcript of the oral arguments of Fisher v University of Texas at Austin, a case about affirmative action.  Most of the media and some politicians decried Scalia’s comments as blatantly racist.
  3. At first, I was troubled to realize that contrary to the media attacks, the population discussed in the transcript is NOT all black students, and it is NOT EVEN ALL students (black and white) drawn from the top ten percent of their high school classes.  Here is the description:

PETITIONER said, “There is a significant portion of the admissions pool, all out-of-state students, all students from Texas high schools that don’t rank, some of the best high schools in the State, and all students just below the top 10 percent who are nevertheless great students who aren’t eligible for admission under the top 10 percent at all. And the Fifth Circuit found that without the consideration of race in the mix for those students, admissions would approach an all-white enterprise.” (At page 39 of the transcript. See

  1. Scalia doesn’t say the thing the media was up in arms about until page 66. Yet it is possible to construe the context of his comments as being about that portion of attendees who did not graduate in the top ten percent of their class in high school.  If he’s only talking about the lower scoring kids, isn’t Justice Scalia a little less racist than the media has portrayed?    Is it racist to say lower scoring kids will do better at lower ranked schools?
  2. What was the exact context of what Scalia had to say?
    1. The Respondent was re-capping what would happen if the affirmative action program was dismantled. The affirmative action program at the University of Texas is a two-part deal:  it allows the top ten percent of graduating seniors an automatic spot at University of Texas, AND it also uses a holistic program that considers race among many factors, in order to achieve a critical mass of diversity at the school.  Without the “PLUS holistic review,” it is unquestionable that black student enrollment goes way down. Respondent explained to the Justices,
    2. What — what I’d like to say too is, if this Court rules that University of Texas can’t consider race, or if it rules that universities that consider race have to die a death of a thousand cuts for doing so, we know exactly what’s going to happen. Experience tells us that. ..this happened at the University of Texas after the Hopwood case:  Diversity plummeted, especially among African-Americans. Diversity plummeted at selective institutions in California, Berkeley, and UCLA, after Prop 209.  And that is exactly what’s taking place today at the University of Michigan. Now is not the time, and this is certainly not the case–
      1. Then JUSTICE SCALIA began to say the thing the media (and many of you) have protested was racist,
      2. “There are –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. ..”   
        1. In his defense, Scalia says “African Americans” but the Respondent had JUST said, “Diversity plummeted, especially along African Americans”… It is still possible here that the hypothesis, [Scalia is not a racist d-bag] holds up. That’s because he was responding to a comment specifying African Americans, not bringing them up out of nowhere.  And the larger context, admittedly 30 pages back in the transcript, was that this conversation was not about ALL African Americans and not even about ALL African Americans admitted to University of Texas, but ONLY about African Americans admitted to U Texas SUPPLEMENTING the process of admits from the top ten percent of a high school graduating class (At the Texas school, the Top 10 percent automatically get in, race-blind, whether they are black or white or something else.). The comment could have been concerning ONLY the kids who may have graduated near, but not quite IN, the top ten percent of their high school classes, and who were also black.  This may be a stretch, but I am agreeing with a friend who said the liberal Shrill Mill went too far and took Scalia’s words out of context. Scalia is either [not a racist d-bag] if he meant this select lower-scoring group of African Americans or he is not [not a racist d-bag] if he meant every African American, everywhere.
      3. More clues are needed to resolve this.
        1. Scalia continued,
        2. “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.
        3. Blech.  What a gross sentence.  When I replaced it with “female” to better understand how it must feel to read if it was about my “group” I felt the pain of the Texas kids a tiny little bit.
        4. “Maybe,” I mumbled to myself, “He means, ‘Schools like the University of Texas’ are profoundly white, not very diverse…? Maybe he means “really white schools like this” are not intellectually nurturing for most black scientists?’”
        5. JUSTICE SCALIA: They come from lesser 21 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.
        6. Ah.  He meant “better.” He meant schools that are too tough for the holistic review kids who did not graduate in the top ten percent of their high school.  You know that moment in the Indiana Jones movie when the cavern pillars start to crumble?
        7. That’s the sound of my null hypothesis.
      4. Scalia continues to show that the null hypothesis is disproved.…
        1. JUSTICE SCALIA: I’m just not impressed by the fact that– 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 — and I –I don’t think it –it — it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.  I just don’t think-

”(Aside…Weird how in his most blatantly racist moment though, he starts using the word “black”, rather than the Formal White Person Word “African-American.”)

  1. Wait… hold the phone. “…The number of really competent blacks admitted to lesser schools turns out to be less…”? WE’RE TALKING ABOUT the BLACK kids that did NOT fall into the top ten percent of their class but were admitted holistically, including race as a factor…. So…here, “competence” is being measured holistically.  And Scalia STILL thinks there is a limited number of these kids to go around?  For fuck’s racist D-bag’s sake. 
  1. Let’s review:
    1. Scalia was probably speaking about blacks who did not do as well in high school when he said having “them” go to a less advanced school. (Not racist)
    2. He said “most black scientists don’t come from schools like this” and made it clear he meant tougher schools. (Could this fact, even if true, be somehow contextually meaningful without implying separate but equal and being racist? Saying “yes” requires a somersault I’m not flexible enough to do.  In other words, no, probably not.  Probably racist.)
    3. Scalia said “YOU KNOW, WHEN YOU TAKE MORE, THE NUMBER OF BLACKS, REALLY COMPETENT BLACKS ADMITTED TO LESSER SCHOOLS, TURNS OUT TO BE LESS.” Recall he was probably speaking about black students who did not do “top ten percent” well in high school. His measure of “competence” is therefore a holistic measuring stick, not a score, yet he still thinks that there is a small, limited number of holistically measured black high school students to go around, and University of Texas, by increasing diversity, is hogging them all.  (Racist.  Really racist.)
    4. Conclusion: Scalia is not [not a racist d-bag.]