The “Mismatch” Between Scalia’s Troubling Question And The Troubling Reaction

Oral argument in Fisher v. University of Texas II was bound to be subject to enormous public scrutiny.  Challenges to affirmative action, or “holistic” college admissions policies as UT calls it, raise strong feelings.  There are problems with such policies from a legal perspective, that they are grounded in fuzzy words that defy clear definitions, lines and limits, leaving much to beliefs that can’t be nailed down.

Think of the sophomoric op-eds in student newspapers filled with sweeping cries of oppression, pain, privilege and trauma, designed to leave a reader with a sense of outrage and passion, but offering nothing that actually has concrete meaning.  Courts try to give meaning in their rulings.

They don’t always succeed, but that’s a bug, not a feature. Affirmative action is replete with warm and fuzzy rhetoric, and few hard definitions, regardless of the fact that diversity provides benefits to all, and lack of diversity reflects an unacceptable detriment to some.  How much diversity, how it’s determined, how far a college can go to help some at the expense of others, eludes easy definition. For believers, this isn’t a problem. For justices, it should be. They’re paid the big bucks to draw lines.  Hopefully, they do their job this time, but I won’t hold my breath.

Yet, the explosion out of the Supreme Court came not from the justices’ inability to get clarity, but from Nino Scalia’s question to Gregory Garre, representing UT.

“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 said, “as opposed to having them go to a less-advanced school … a slower-track school where they do well.”

The reaction was explosive: racism.  First problem is that this was just a question, not an answer. Asking questions is a good way to get answers. Questions can be used as a set-up for the purpose of knocking down an argument. Questions provide the advocate with an opportunity to nail down his point, end the doubt by crushing it with reason and logic. Questions are what Supreme Court justices are supposed to ask. Asking a question does not necessarily mean that it reflects a justice’s thoughts. It’s just a question.

But then, this was a remarkably stupid question.  And it was phrased in an insufferably stupid way.

As was pointed out by Michael McGough in the LA Times, the root of the question is the “mismatch” theory, argued to the Supremes by its leading proponent, Richard H. Sander, a UCLA law professor, in an amicus brief. The crux of the theory is that if students are put into schools that demand harder work than they’re ready for based on race, they will fail and suffer for the good intentions.

The theory has some superficial appeal. The problem is that it’s based on dubious assumptions, foremost of which is that absence of any causal connection. The Sanders amicus brief was ripped a new one in the amicus brief of “Empirical Scholars,” a needlessly pretentious name for academics proffering a solid argument that “mismatch” theory is fundamentally flawed. Its only flaw is that it requires some deep thinking to appreciate its message, and people really hate risking a headache over something that can be easily answered by their gut prejudicial assumptions.

And so, by asking a question, Justice Scalia became the official Supreme Court poster boy for racism.

Justice Antonin Scalia proposed that rather than place unprepared black students in a top state school “where they do not do well,” they should be sent “to a less-advanced school, a slower-track school where they do well.”

Well, not exactly. Scalia “proposed” nothing. He asked a question.  Supreme Court justices do not engage in “negotiations” with advocates during oral argument, and to suggest otherwise is to misapprehend the nature of the process.

Justice Scalia and the other conservative justices may prefer to ignore the systemic effects of racism and segregation in America, but they do not disappear that easily.

Would it not be prudent to await a decision before discussing what they prefer?  Then again, any decision that doesn’t support the holistic approach to race admissions will be ripped as racist no matter what rationale is offered. Why not beat the rush?

Does anyone really think Scalia’s question on the mismatch theory, not to mention his monumentally bad phrasing, reflects a neutral perspective, or better still, a set-up for Garre to knock down?  Nah. Justice Clarence Thomas has made his disdain for affirmative action brutally clear, and pretty much everyone who pays attention thinks they were secretly holding hands behind the bench when Scalia made the noises for the Silent Clarence.

But the fact that a justice asked a question at oral argument, one that gives rise to offense for many people, and has led to cries of “racist” for having done so, is a problem.  It’s simplistic to contend that merely asking a question reveals too much, or that public pressure and outcry should prevent a justice from asking a question that might cause public outrage.

Questions may reveal a justice’s state of mind, or not.  Questions may include language or concepts that evoke widespread public condemnation, but if they raise legitimate if uncomfortable issues, they need to be asked. They should be asked.

So that means Scalia deserves a pass for his mismatch theory question?  Not exactly. It was a stupid and needlessly provocative question.  There are many problematic issues raised by Fisher, and there is a good chance the UT will lose because of severe problems with grounding its diversity claims in meaningful parameters.

But the mismatch theory isn’t one of them, and somebody like Nino should be smart enough to realize that raising a question as to this debunked theory at oral argument was inviting scorn and ridicule.  It was not merely idiotic to raise, but it was raised so blatantly offensively as to dispel any claim that it didn’t reflect his mindset. Lawyers are expected to have the ability to use words surgically. Nino took a bludgeon to oral argument.

While this horrendous display of poor tradecraft by a Supreme Court justice has certainly caught the shitstorm it deserved, it should not be confused with the accusations it doesn’t. This is not proof that questions at oral argument are magically converted into justices’ beliefs. This should not stand for the proposition that controversial questions at oral argument are hereinafter the target of derision. Justices need, and we need them to need, the ability to raise questions and issues to the advocates, especially in highly controversial cases.

What we do not need is a nation of angry, offended people, leaping to conclusions about the significance of a question, or condemning a justice for asking it. But damn, Nino, your question was just totally horrible, ignorant and, well, racist, even if it was couched in terms of Sander’s bullshit mismatch theory.

47 thoughts on “The “Mismatch” Between Scalia’s Troubling Question And The Troubling Reaction

  1. Robert

    Great post!! I am new here, just started reading your stuff yesterday actually.

    I am a big fan of Scalia and I have to say he could have worded that question better, as you say. I think there might be more merit to the “mismatch theory” as you call it, but the way he worded his question was not a good way to get to the underlying point: Is the artificial inflation of numbers for a specific group of people not a factor in an artificial inflation of the numbers within that group who do not excel? The fallacy comes from knowing that all groups could face the prospect of not being suited for “an advanced school” like UT. That is up to the solicitor to argue, no?

    1. SHG Post author

      As someone new to SJ, a word of caution. Never start a comment with “great post” unless you’re begging for a smack. Validation isn’t sought or appreciated; comments are for illumination of ideas or humor.

      Next, I don’t call it the “mismatch” theory. Sanders does. If you want to bolster the theory, then read the responsive amicus brief (as linked in the post) and address the real problems rather than making up your own. And no, the problem isn’t limited to the “fallacy comes from knowing that all groups could face the prospect of not being suited for ‘an advanced school’ like UT.” One of the fallacies is that there is no causal connection between the admission of students who may not have the grades, class rank or SAT scores that would, absent race, get them admitted and the ability to perform the level of work needed to succeed.

      Under the assumption that others will share your confusion, I’ll explain my position in more concrete detail and get it out of the way. Let’s assume that UT wants a frosh class of 1000 students. It gets 20,000 applications, 10,000 of which reflect a serious doubt that they’re qualified to perform UT quality work. That leaves 10,000 applicants fully qualified to do the work, but ten times the number that UT wants to admit. It can cull its 1000 freshmen by the standard metrics, class rank, grades, SAT scores, or it can take other factors into account, such as race in order to achieve a more diverse group of 1000. So there is no issue of mismatch, the assumption that if race is taken into account to achieve a more diverse group, then unqualified students will be admitted. Rather, it means that race is taken into account from a group that is fully qualified to success but wouldn’t otherwise gain acceptance based on the standard criteria.

      Is this a fair point to question? No, not really, at the level expected of a Supreme Court justice. It might be the sort of argument one would have at a party where only beer is served (not that there’s anything wrong with that), but to expect a Supreme Court justice to be aware of the fallaciousness of the argument without having to ask about it at oral argument really isn’t a stretch. They should be asking about higher order issues. Mismatch theory is below the level of thoughtfulness to be expected of the Court.

      1. David M.

        All well and good. But there’s the stubborn fact that African-Americans also have trouble graduating.

        1. Robert

          Yes, but is that because they are African-Americans, which is kind of how one can read Scalia’s question?

        2. SHG Post author

          Then you have to take into account other societal and cultural factors. The ability to do the work is only one factor in the mix of mismatch. The disproportionate inability to graduate timely is a stubborn and troubling factor, but that doesn’t make it attributable to the capacity to do the work. Remember, correlation doesn’t prove causation.

          1. David M.

            Both of you are right. But the causal argument offered by the college students themselves is that they’re being oppressed by the likes of Princeton, Yale and Harvard.

            1. SHG Post author

              Nobody expects the inmates in the asylum to accurately diagnose themselves. If they could, they wouldn’t be inmates.

          2. John Thacker

            Most of the studies that I’ve seen suggest that the mismatch theory is ultimately wrong, but not exactly for the reasons that you describe.

            There *is* good evidence of the effect proposed by the mismatch theory; students with scores towards the bottom of the admitted class are less likely to graduate (regardless of racial or ethnic background.) It’s simply not the case that “there are 10x as many applicants who could do the work.” That’s an oversimplification, it’s not a binary “can do the work” or “can’t.” The more qualified people are, the better they’ll do.

            It’s not crazy to suggest that you can do better by being a bigger fish in a smaller pond than going from being top at your high school to the worst prepared at an extremely selective school. After all, the people I knew who went to graduate school in mathematics at Cornell were all top ranked undergraduate students, but came from a variety of institutions. You didn’t see middling math students from the most selective undergraduate schools, even though their high school qualifications were often better than the top ranked students from lesser undergraduate schools.

            However, while that effect exists, it’s swamped by a larger effect. The less prestigious an institution you go to, the less likely you are to graduate. This also has a lot of factors, including having a more academically focused peer group and higher expectations of graduating on time. For virtually all students, this effect is larger than the former effect and counteracts it. Any gains from being a higher ranked student at a worse school are counteracted by the overall worse environment at the worse school.

            The mismatch theory appears wrong, but it’s not laughable, and it’s not because the effect doesn’t exist at all. It was a fine hypothesis, just overwhelmed by other effects. The size of the effect could change, particularly depending on what the alternatives are and the size of the affirmative action program, etc., so under different circumstances it could be correct. That also speaks to the difficulty of attempting to make Supreme Court decisions on the basis of social science that is awfully dependent on factors that could change depending on the situation.

            1. SHG Post author

              Protip: If the purpose is to clarify a complex, multivariate position that people are not otherwise inclined to read and think about in full, reducing it to small, comprehensible bites that allows people to get their head around it sufficiently to see it has problems is a useful tool in communicating ideas.

              And as I said, it does have its superficial appeal.

            2. paul

              There are a lot of claims in here which make me want a citation. And i really hope the citation isn’t a gladwell book. Do you have data backing up your claims about these effects of going to less prestigious institutions? This might come off as hostile but i am genuinely curious.

            3. SHG Post author

              If you’re genuinely curious, click the links in the post, read the amicus briefs, read the studies cited in the briefs, etc. There’s plenty in there. But if you’re not willing to put in the work, then you’re not really curious, just lazy.

              And Thacker, if you reply, I will delete it. Paul’s inability to grasp that his laziness is not a reason to hijack comments to go down the rabbit hole after him does not mean you get to go down that path either.

      2. Robert

        I appreciate your explanation. But one final question: if, in that 10,000, all applicants met UT’s culling criteria then why use race as a deciding factor? Is it not reasonable to assume that if the applicants made it past the first cut, that there would be substantial characteristics outside of race to weigh for the remaining 10,000? And would it not be reasonable to say that there would still be acceptance of non-white students in this scenario?

        1. SHG Post author

          That’s where the benefit of diversity comes into the argument, that having black students is its own virtue in creating a diverse mix of students, both to remedy historic systemic discrimination and to add their perspective to the mix of experience of white students. It’s clearly meant to be a race-based purpose, and this is where the issue of fuzziness presents the problem as it defies quantification as to the extent of benefit, the extent of detriment, and, assuming one accepts the premise that diversity is its own virtue, how much diversity fulfills that purpose.

      3. Jardinero1

        ” It can cull its 1000 freshmen by the standard metrics, class rank, grades, SAT scores, or it can take other factors into account, such as race in order to achieve a more diverse group of 1000. ”

        I wonder if “choosing by lot” to cull the herd down to 1000, would withstand strict scrutiny. In the abstract, nothing is more fair than choosing by lot. Not an attorney, but really curious about this. Please chime in.

            1. SHG Post author

              This is a law blog, for lawyers and judges. I expect comments to be comments, either illuminating or humorous. I do not want questions about off-topic curiosities by non-lawyers. If that’s what you’re looking for with your first comment here, then this is not a good blog for you. Volenti non fit injuria.

  2. Mort

    To be fair, though, the people crying about how Scalia is a racist already hated the guy. It isn’t like a new group of Court Watchers are gonna join Team Kagan because of this.

  3. delurking

    The discussion over the mismatch theory is somewhat baffling to me. Of what relevance to the constitutional issue at hand is the success of the students at the school? At its root, the issue is whether or not, during the admissions process, the applicants are being afforded equal protection of the laws, right? If the educational value to the university community of having students with a certain cultural background is large, is the university not authorized to accept students with that cultural background? Of what relevance is their potential to complete the somewhat arbitrary graduation requirements?

    Furthermore, there is no question that the University can hire people with a particular cultural background to teach, if they have few other faculty with that cultural background, even if their grades or other credentials are lower than other applicants with different cultural backgrounds. There is no question that the University can invite speakers to campus that have a particular cultural background, taking into account the cultural backgrounds of the other speakers they have previously invited, in order to have a mix of viewpoints presented. What is special about students?

    As for it being difficult to come up with clear boundaries; that is the real world. What is special about the age of 18? Why is stealing $500 significantly worse than stealing $499? Etc.

    1. SHG Post author

      UT wants to use race as one of myriad factors in deciding admissions. The issue is whether that violates the Constitution. UT’s choice is subject to strict scrutiny, which requires it to show a compelling governmental interest, and must be narrowly tailored to achieve that interest. But don’t let law stand in the way of your comment on law. Except, of course, that there had to be some reason for the Supremes to take the case, your bafflement notwithstanding.

      1. delurking

        Thank you. My bafflement is narrower than that – why did Scalia bring up a theory about the future success of students in the classroom? Of what relevance is that at admissions time to the question at hand?

        I now see your point about my second paragraph, though. UT wants to use race and not culture because race is a proxy for culture, and is much easier to ascertain. So there is a difficult question about whether or not that proxy is good enough to be permissible. Then, though the phrase “disparate impact” comes to mind, and makes me wonder if even culture would pass the test, if it obviously resulted in people of a certain race being singled out for special treatment.

        I now see there is a difference with students: much less effort is spent scrutinizing each applicant than either faculty hires or speaker invitations, so the process winds up relying on proxies or heuristics. Thus, the process can easily run afoul of the rules and end up at the SC.

        1. SHG Post author

          If the claimed justifications for use of race (to compensate for historic systemic educational discrimination) fails to produce students who succeed at UT, then it fails to pass muster under the first prong of strict scrutiny by not successfully producing college educated students. And while race is in part a proxy for culture, it is also a stand alone virtue based upon historic racial discrimination and the value of white students interacting with black students in order to achieve racial understanding and acceptance, and to learn of the different experiences that come of being of a different race.

          1. delurking

            So I take it from your response that the question of what the compelling government interest is has been answered previously, and it includes graduating. That explains it.

            I do find the second part of your response interesting, in light of the “words have meanings” theme that often comes up here in the discussions of college activism. I have always taken “to learn of the different experiences that come of being of a different race” to be simply an acknowledgement that there are cultural differences between the blacks and whites (thus race is a proxy for culture), and that the “value of white students interacting with black students in order to achieve racial understanding” is really about cultural understanding. Obviously, others see the definitions differently. I will keep that in mind.

            1. SHG Post author

              Your assumptions are wrong on both counts. Why you assume it had been “answered previously” is unclear, but that’s the argument being made. Your second, that I approve of the argument, has nothing whatsoever to do with the argument they’re making. I explained to you why, not because I think so (if you read the post, you would know I consider the arguments way too fuzzy, but that apparently eluded you), but because that’s the argument before the court. You’re way too high maintenance. Go back to lurking. It’s really not my job to explain this.

            2. delurking

              I assumed it had been answered previously because I assumed Scalia wouldn’t have asked the question about graduation rates if it was still up for debate in this case.

              When I wrote “others”, I did not mean you, I meant others.

              Thanks, though, it has been enlightening.

      2. awp

        “But the mismatch theory isn’t one of them, and somebody like Nino should be smart enough to realize that raising a question as to this debunked theory at oral argument was inviting scorn and ridicule.”

        “But don’t let law stand in the way of your comment on law. ”

        This theory is far from debunked and one law brief for interested parties citing valid critiques of one study, and then other studies that support their own position is not a thorough debunking. One search on shows the continuing empirical research and conflicting findings. But don’t let the scientific process get in the way of your comment on the scientific process.

        Econ (although not Labor or Education) Ph.D.

        1. SHG Post author

          So you don’t think it’s sufficiently thoroughly debunked? Okay then.

          You could well be right. I’m just a lawyer, so what I consider to be adequately debunked could well be wrong. That said, I do consider it to be adequately debunked. I guess people will have to decide for themselves.

  4. Robert Fickman

    Sometimes things are just as they appear. Scalia uttered racist words because he is a racist. It’s that simple.
    The rest of the court let him get away with it. Silence in the face of evil is complicity. The entire court is complicit.

    That hate speech would be uttered unchallenged from the highest court comes as no shock in the “Trump Era”. Trump et al, daily barrage us with putrid words. Their hate speech has found a public forum in our country because it has gone unchallenged by the political leaders and the feckless, fawning press. Scalia’s racism is merely another sign of the times.

    Edward R. Murrow was right. We have a duty to speak up and challenge those who would take us down a dark path. Those who exploit the times are only partially to blame. As Murrow pointed out, the fault is also ours for not loudly condemn the hate speech and calling it what it is- pure evil.

    Robb Fickmang

      1. Robert Fickman

        You like to think. Who am I to deny you of that pleasure? But in this case, I don’t see the need for much analysis. Racism is racism no matter how it appears. You can put a fur coat on a hog and its still a hog, just a well-dressed hog.

          1. Robert Fickman

            I once had the higj honor of being in trial in federal court with my hero, the legendary Richard “Racehorse” Haynes. The AUSA Made a lengthy argument about some novel way they wanted the judge to do something. Racehorse responded simply” Judge that makes as much sense as putting icing on cornbread.” The judge ruled in Favor of Racehorse.

            I asked what he meant and Racehorse said it means you just don’t ever do that. You don’t ever put icing on cornbread and you don’t Ever do what the AUSA was asking. Apparently the judge got it. Racehorse had a million of them.

            1. Robert Fickman

              That’s 100% true. There is only one
              ” Racehorse” Haynes. To this day he remains the best and nicest lawyer I ever met. Not too many lawyers who won 38 out of 40 murder trials. When a woman murdered her abusive husband he called it a “Smith and Wesson Divoce”. He is very funny. I once asked him “Racehorse is it true back in the day you and Warren Burnett road your motorcycles through the lobby of the Rice Hotel?” Racehorse smiled and said ” Burnett didn’t” . Love this man.

              Happy Hanukah

            2. SHG Post author

              You too, Robb. And get the kid to have me down to Harris County for something soon. I want to show you the cowboy hat Gerry Spence gave me. It’s almost as nice as yours. Black hat, of course.

            3. Robert Fickman

              Ok. But if by ” the kid” you are referring to Markus OhReallyUs, he don’t listen to me much. Maybe he has mud in his ears or maybe he is just smart enough to turn his receiver down when I talk. Always set your hat on its crown. And if any man touches your hat remember that is a capital offense. Would be good to get you and my roomie, the commie Blackburn here at same time.

  5. losingtrader

    I didn’t realize I had cheated my way through such a prestigious school as UT Austin . Kudos to me.

    As to this case, Scott is correct about the “fuzziness.” If courts like to draw lines the present standard is unfair to anyone with high grades from a high-achieving high school. In operation, it is much more unfair to whites.
    The profitable solution I proposed several years ago was to purchase a for-profit remedial high school, and have the smart students transfer in from the high-achieving private high schools for their senior year, thus always finishing in the top 8%, or whatever the current standard happens to be.
    But, you know me, I love to “game” things.

  6. Dragoness Eclectic

    The Sanders amicus brief was ripped a new one in the amicus brief of “Empirical Scholars,” a needlessly pretentious name for academics proffering a solid argument that “mismatch” theory is fundamentally flawed. Its only flaw is that it requires some deep thinking to appreciate its message, and people really hate risking a headache over something that can be easily answered by their gut prejudicial assumptions.

    Are you being sarcastic? I read the amicus brief, curious to see what you considered “requires some deep thinking”. Quick summary: Sanders claims that his ‘mismatch’ theory and the analysis it is based on is generally accepted social science that has not be rebutted. A buttload of eminent social scientist pile on to say Sanders is full of shit, he’s been rebutted many times, and his study is crap because of bad methodology (comparing apples and oranges, essentially), AND many other studies contradict it.

    Where’s the deep thinking required? The brief tells you up front, and it’s not full of lawspeak, so I could understand it easily enough.

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