Supreme Court Justice Antonin Scalia presents as a champion of Every Man. He once said that his court had no more business addressing complex legal issues (like abortion or the preservation of vegetative human life) than any “nine people picked at random from the Kansas City telephone directory.” Such humility.
Scalia has spent a career guarding the “traditional” values and mores of simple people (in prose that would elude most of them) against the viral “agendas” of dangerous pariahs like homosexuals, abortionists, feminists, and racial minorities – as well as their champions among Hollywood producers, the moneyed elite, and the “lawyer class.” But all his blustering is about as genuine as Donald Trump’s claim to speak for the middle class. Scalia is the lawyer class: he graduated from Georgetown University and Harvard Law School, and his institutional snobbery was recently laid bare during oral argument in the University of Texas affirmative-action case.
From the bench, Scalia said, “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 less — a slower-track school where they do well. 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.”
The first of the two presumptions undergirding this mindless riff is that African Americans are too slow for prestigious (white?) schools. That presumption has rightly been widely derided. But I’m curious about the second presumption: that there are “lesser schools” out there that will slow down their curricula to accommodate all the African American students for whom classes are allegedly “too fast.”
As a long-time professor at a law school that is not in U.S. News & World Report’s arbitrarily compiled “first tier,” and a school that is among the most diverse ABA-accredited law schools, I assume Scalia is talking about schools like mine. Or maybe there are other “lesser schools” he was referring to – like traditionally black colleges and universities.
If Scalia is talking about my school – Western Michigan University Cooley Law School – then I have some news for him: neither I nor any of my faculty colleagues is slowing down for anyone. I don’t know how fast professors go at Harvard, but in my Constitutional Law I course, I at least touch on Articles I, II, and III of the Constitution; the Bill of Rights; the Fourteenth Amendment (especially birthright citizenship and equal protection); the Commerce Clause; the Supremacy Clause; the Full Faith and Credit Clause; principles of judicial review; principles of judicial supremacy; federal jurisdiction; and originalist and organic interpretive modalities – all in week one. Are there any Ivy League professors out there who would like to challenge me to a curricular foot race?
And here’s some more news for Scalia: there is no difference – not any at all – between the collective aptitude of the ethnic minorities in my classes and the collective aptitude of everyone else in my classes. Never – not once in my 14 years teaching law – have I thought to myself, gee, I really need to slow down so my African American students don’t get lost. If that is how Scalia thinks things work at “lesser schools,” then he’s living in the kind of fog that rises up when the cold rain of ignorance beats down on the hot asphalt of white supremacy. He’s drunk the racist cool-aid, and he’s delusional.
What Scalia considers to be better schools, of course, are those schools that rely for their admission decisions on pristine standardized test scores or fortunate family bloodlines. So the champion of Every Man is not so humble after all; he’s every bit the elitist windbag that he professes to abhor.