Justice Scalia and Racism


Supreme Court Justice Antonin Scalia

This post originally appeared on the American Constitution Society Blog on Dec. 11, 2015.

Were Justice Scalia’s Remarks in Fisher v. Texas Racist?
Guest Post
by Tanya Washington, Professor of Law, Georgia State University College of Law. Follow the professor on Twitter @Profwashington8


But, more important than how his comments are perceived is how they frame the debate about affirmative action and how they will inform the Supreme Court’s decision in Fisher v. University of Texas at Austin.

The issues before the Court center on whether the means of obtaining the racial diversity that serves educational prerogatives is narrowly tailored and therefore constitutional, and not whether the end to be achieved (educational diversity) is a compelling and constitutional goal. Though the constitutionality of educational diversity was settled as a matter of law in Grutter v. Bollinger in 2003, the comments of several justices, including Justice Scalia, during oral arguments in Fisher suggest that its constitutional future is far from certain.

In oral arguments before the Court on December 9, 2015, Justice Scalia made the following controversial statements about the legitimacy of educational diversity:

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 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 that they’re being pushed ahead in classes that are too fast for them. . . . I’m just not impressed by the fact that the University of Texas may have fewer [Blacks]. 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.

Justice Scalia is not the first justice to express these views. In his dissent in Grutter v. Bollinger Justice Thomas observed, “[O]vermatched students . . . . find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions.” These views tap into the perception of affirmative action as a way of admitting “unqualified” students of color into colleges and universities where they cannot compete.

Of greater concern to me than the patronizing tone of Justice Scalia’s remarks and Justice Thomas’ observation is the fact that both reveal a lack of understanding of educational diversity. The University of Texas (UT) is using race to obtain an educational benefit. Can the Court determine whether how UT is using race is constitutional if it doesn’t understand why it is using race?
The goal that the majority in Grutter recognized as a compelling interest was educational diversity, of which racial diversity is but one aspect. Educational diversity relies on the theory of cognitive disequilibrium as provoking higher order thinking. It takes advantage of a racially diverse student body to provide the cognitive dissonance that forces students to reconcile different perceptions produced by different experiences.

Justice Scalia’s comments cast affirmative action as an ill-conceived goal that harms, rather than helps, Black students. Implicit in his statement is the idea that the goal of affirmative action is to help Black students, when in fact the goal of educational diversity is not to remediate the effects of racial discrimination for students of color; rather, it is to use racially diverse experiences in the classroom to enhance the educational experience of every student.
To be fair, Justice O’Connor’s opinion in Grutter did not distinguish between remedial affirmative action and educational diversity, leaving room for Justice Scalia to confuse the two goals. The confusion has constitutional consequences and will inform two questions the Court’s decision in Fisher is expected to answer: 1) whether UT’s use of race as a “factor of a factor of a factor” in a holistic review of applicants is narrowly tailored to achieve educational diversity; and 2) how much racial diversity is enough for UT to achieve the educational benefits it seeks?

As a proud beneficiary of affirmative action and a graduate of the University of Maryland and Harvard law schools, I was offended by Justice Scalia’s statements, and I know that his comments linking intellectual capacity and race are not true for Black or White students. Having taught at esteemed historically Black colleges and universities, like Howard University, I also know that institutions Justice Scalia refers to as “slower track schools” and “lesser schools” educate and graduate some of the most brilliant minds in the nation, including the late Justice Thurgood Marshall. I understand why his statements inspired such passionate debate.

Pondering whether Justice Scalia’s comments are racist is certainly a provocative question – hence the title of this post. However, it is also important to consider how his remarks obscure the goal that schools employing race-conscious admissions policies seek to achieve. Those Justices in favor of upholding Grutter’s ruling that educational diversity is a compelling interest would do well to define the goal, thereby increasing the odds that using race to that end will withstand constitutional scrutiny in Fisher and beyond.






Dorn: Donald Trump’s dog whistles

EDornBy Edwin Dorn – Special to the Austin American-Statesman

Donald Trump’s bombast boils down to this: “If you hate minority groups, you’ll love me, ’cause I’m gonna Make America White Again.”

Trump doesn’t use those specific words. Instead, he uses what University of California-Berkeley Professor Ian Haney Lopez calls “dog whistles,” phrases that perk up the ears of bigots. I am not saying that all of Trump’s supporters are racists; but a quarter of Republicans have responded enthusiastically to his dog whistles, so we need to be clear about what is going on.

Three years ago, Trump revived the dying “birther” movement. He probably didn’t really believe that nonsense, but he knew that many white Americans were angry and anxious about the election of a black man to the presidency. They needed a story to explain how such a thing could have happened — thus the fantastic tale about Barack Obama’s birth in Kenya. In some surveys, more than 40 percent of Republicans said they believed that story. This does not mean that 40 percent of Republicans are stupid. What it means is that many of them would say outrageous things to delegitimize Obama’s historic achievement.

Similarly, most of Trump’s supporters are not dumb enough to take his immigration proposals literally. They don’t believe that most undocumented immigrants are rapists and criminals, or that a President Trump would expel 11 million people from the country, or that he could make Mexico build a 2,000-mile wall, or that he could unilaterally reinterpret the 14th Amendment to deny citizenship to children born in the U.S. However, they love to hear his dog whistle tweeting “We don’t want Mexicans here.”

“Chinese” is another of Trump’s code words. Few Americans are bothered by imports from China, which include everything from toys to iPhones to Trump’s own signature-label shirts. But for Trumpists, “Chinese” is another way to say “yellow peril,”reminiscent of the 1870s. What worries them is not China’s manufacturing capacity; it is Chinese immigrants. And for many Trump supporters, “Chinese” is an umbrella category for the millions of Asians – Vietnamese, Cambodians, Japanese, Koreans, even Indians and Pakistanis — who have immigrated into the United States during the past 50 years.

What solutions does Trump offer for the decline that he claims the United States has been suffering? How does he plan to “Make America Great Again”? By putting white men back in charge! Trump knows that he cannot reduce the number of blacks, Hispanics, and Asian-Americans; but as president he could enhance the GOP’s voter suppression efforts. Reducing the voting power of minority citizens would help to restore what many Trump supporters believe to be the proper racial order.

A series of laws passed a half-century ago — the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1965 Immigration Reform Act — ended centuries of lawful white privilege. Then came the women’s movement. Men who thought they should be running things started to feel emasculated.

Trump is rich. He boasts that foreign leaders will do whatever he tells them to do — and one of his former wives has vouched for his sexual prowess. His phallic symbol is a long, sleek jet airplane. A few weeks ago, Ted Cruz posted a video of his own phallic symbol: a gun barrel wrapped in a strip of bacon.

Ridiculous as he is, Trump has helped to expose the breadth and intensity of prejudice in the GOP. The question is, do any of the other candidates have the decency and courage to stand up to their party’s bigots?

Dorn is a professor of public policy at the University of Texas. He is a former undersecretary in the Department of Defense and former dean of the LBJ School of Public Affairs.

Remembering Julian Bond

JBond987As many of you may know, I am a visiting professor at the LBJ School of Public Affairs at the University of Texas Austin. I have had the pleasure of hosting Julian Bond twice at the University. Once this February as the keynote speaker for the annual Barbara Jordan Forum at the LBJ School and last year at the Civil Rights Summit lecture in April.

Shirley Franklin, “His life’s work and writings serve as a blueprint for all who seek social justice and equality for all Americans and peace in the world. His sharp intellect and unflinching courage in the face of obstacles and ridicule inspire each of us to stand up, speak up and act up for the principles of democracy and justice.

Julian was an inspired teacher, committed human rights activist and a courageous spokesperson for peace, equality and justice for people of color, for women, for LGBT community, for immigrants and for all Americans and people around the world.”

One of the students, Virginia Cumberbatch introduced Julian Bond at the Barbara Jordan Forum this year and her remarks are included here as well as an interview that I conducted this week honoring Bond on the Boston NPR program, Here and Now.

Julian Bond Introduction by Virginia Cumberbatch

2015 Barbara Jordan Forum

Lyndon B. Johnson School of Public Affairs

The University of Texas at Austin


Julian Bond and LBJ student Virginia Cumberbatch

Good afternoon, today I have the honor of introducing a life-long advocate, activist and an architect of civic engagement in America. As the country engages in important conversations on civil rights and human rights, the voice and virtue of Julian Bond represents a model of advocacy and activism that stands to forge connection between

legacy and momentum. The life-long work of Julian Bond should not only impress us, it should also inspire us to sustained and meaningful action, as his leadership stands as a blueprint for social advocacy. As a student he challenged the status-quo through the work of the Student Non-Violent Coordinating Committee, as a politician he advocated for the voiceless, as a teacher at some of the nation’s most prestigious institutions he models the principles of conviction, as a thought leader he’s created new paradigms of engagement through his governance of the NAACP and today Bond stands to deliver a message of equality, freedom, and justice with a renewed sense of relevance.

In the past year The University of Texas and the LBJ School have reengaged the civil rights legacy of Lyndon B. Johnson and the Civil Rights movement at large – reminding us that we cannot forget the past, as it plays a vital role in informing our future. Representative John Lewis reminded us at last year’s monumental LBJ Civil Rights Summit, that “we can’t re-remember things incorrectly, or past hurts and misguidances will continue to lead us.” Such words ring true in the wake of the national headlines that continue to shake the American conscience. Likewise, these words evoke a pivotal sentiment for the millennial generation. Although decades removed from the impetus of Civil Rights moments like the Selma to Montgomery march or the March on Washington we cannot continue to live in naivety, failing to recognize that such historical travesties are indeed a part of our current realities.

As students, community members and leaders in the 21st century, we find ourselves in the crux of past and present, but Julian Bond demonstrates for us all a pivotal balance between mere historical reflection and celebration AND vigilant observation and engagement in facing current challenges of equality, access, and social justice.

Whatever the human rights issue Julian Bond has advocated for fairness and inclusion. He has been steadfast in his fight to make real the American Dream and the principles of equity and equality promised in the U.S. Constitution. Such responsibility should still rest on the shoulders of us who call ourselves policy students, community leaders, and human beings.

On behalf of my generation, thank you, Mr. Bond, for demonstrating time and time again that we cannot and must not be silent in the face of prejudice, inequality and discrimination. May today’s conversation reengage us, reinvigorate us and redirect us.

Ladies and Gentlemen, please help me welcome the 2015 Barbara

Jordan Speaker, the Honorable Julian Bond.

Boston NPR’s Here and Now 


The University of Texas-Austin Victory is a Win for Diversity



Whether the 2-to-1 ruling from the Fifth Circuit Court of Appeals in New Orleans decision to allow the University of Texas-Austin to use race in college admissions to achieve diversity will have an impact on other higher education institutions is not known. Judge Patrick Higginbotham wrote. “It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity.”

The decision is the result of a lawsuit filed by Abigail Fisher, a white Texan who sued the university after she was denied admission in 2008. Last June, the U.S. Supreme Court said the federal appeals court should take another look at case. After the Supreme Court ruling, there was speculation that use of race in admissions policy at the University of Texas might be stuck down. Instead the Appeal Court upheld the decision. The University of Texas “10 percent” admissions rule states that Texas students who graduate in the top 10 percent of their high school classes can earn automatic admission. For the other 90 percent there is a combination of factors in the evaluation process and race can be one of them.

University President Bill Powers said in a statement, “We remain committed to assembling a student body at the University of Texas at Austin that brings with it the educational benefits of diversity while respecting the rights of all students. This ruling ensures that our campus, our state and the entire nation will benefit from the exchange of ideas and thoughts that happens when students who are diverse in all regards come together in the classroom, at campus events and in all aspects of campus life.”

This decision might provide a moment of comfort for colleges and universities that use race as one factor or criteria for admission but the moral obligation to admit diverse students in academic institutions will not likely be won, if it has to battled in court from state-to-state.

Happy Birthday Barbara Jordan!!!

BJordanToday is the birthday of the first African American elected to the Texas Senate after Reconstruction and the first southern black female elected to the United States House of Representatives, Barbara Jordan.

A PK, (Preacher’s kid) Barbara Charline Jordan was born in Houston, Texas, on February 21, 1936. She was educated in the Houston public school system and later earned a B.A. from Texas Southern University and her law degree from Boston University in 1959. She began practicing law in Houston in 1960 and her political turning point occurred when she worked that year on the John F. Kennedy presidential campaign.

She eventually helped manage a highly organized get-out-the-vote program that served Houston’s 40 African-American precincts. In 1962 and 1964, Jordan ran for the Texas House of Representatives but lost both times, so in 1966 she ran for the Texas Senate when court-enforced redistricting created a constituency that consisted largely of minority voters. Jordan won, defeating a white liberal and becoming the first African-American state senator in the U.S. since 1883.

I have participated in this week’s activities at the University of Texas, LBJ School of Public Affairs, where Barbara Jordan’s life and achievements are celebrated by students, faculty and friends during her birthday week. This week includes a host of panel discussions and presentations about her legacy, her life and the implications of her life for today.

While Jordan was a pioneer for women and for African Americans, she also captivated the nation with her intellect, her courage, her commanding use of language and her remarkable knowledge of history and the Constitution.

To avoid expected controversy and backlash from inviting a woman and an African American as the keynote speaker at the Democratic National Convention in 1976, the Democratic Party invited John Glenn to keynote too. Although John Glenn is a beloved national hero most don’t remember Glenn’s speech. After her historic keynote address she never ran for office again and spent 17 years teaching at the University of Texas.

Nestled on a hill in the Texas State Cemetery Barbara Jordan was the first African American to be buried there and etched on her headstone are the words “Teacher” and “Patriot”. She loved her country and she loved teaching. Her career was rooted in a simple value that should be a standard for anyone seeking public office—–She understood that the public’s trust should not be bargained, negotiated or sold. She dared public officials to do what you said you would do, “If we promise as public officials, we must deliver. If we as public officials propose, we must produce.”

Though Jordan died nearly 20 years ago, as a woman, African American and former elected official, I and so many others, owe her a debt of gratitude for her courage, her intellectual fortitude and her fearless fight for justice and equality. Happy Birthday!


Former Atlanta Mayor Joins the LBJ School as Barbara Jordan Visiting Professor


First African-American Female Mayor of a Southern City to Keynote 17th Annual Barbara Jordan Forum

AUSTIN, Texas, Jan. 15, 2013 — Shirley Franklin, who served two terms as mayor of Atlanta, has joined the LBJ School of Public Affairs as the Barbara Jordan Visiting Professor in Ethics and Political Values. The LBJ School’s dean, Robert Hutchings, announced the appointment today.

In addition to her appointment, Franklin will serve as the keynote speaker for the 17th annual Barbara Jordan Forum, scheduled for Feb. 19. Prior to that, Franklin will introduce Andrew Young — a former Atlanta mayor, congressman and U.N. ambassador — at the second annual Tom Johnson Lectureship hosted by the LBJ Library on Jan. 31.

“We are so very pleased at this tremendous opportunity to learn directly from one of the nation’s most respected former mayors,” Hutchings said. “Franklin embodies the spirit, passion and dedication Barbara Jordan demonstrated throughout her inspiring career, and we are grateful that Franklin has chosen the LBJ School as her home.”

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