Why hasn’t Justice Scalia proposed sending athletes and legacies to “lesser” schools?

By Marc Jampole

Supreme Court Justice Antonin Scalia expressed an odious racist sentiment the other day when he said that those admitted to elite universities based on Affirmative Action standards suffered a disservice because they struggle at the elite school instead of succeeding at a lesser institution.

The reason I know Scalia’s comments carry a racial tinge—the false notion of black intellectual abilities—is because Scalia says nothing about the struggles faced by the less qualified student who happens to be an athlete or a legacy.  Studies show that legacies get a bigger break than either African-Americans or athletes do in college admissions, that is, that legacies have the lowest grades and SAT scores on average of any studied group.  A legacy, don’t forget, is someone who gets admitted because mom and dad and maybe granddad and great-gramps went to the college in question and have been giving it a lot of money for a long time.  I imagine that many of Scalia’s bosses, their children and perhaps one or more of Scalia’s own children have benefited from the special treatment given legacies. I vividly remember my son’s friend complaining that the legacies held back the classes at Harvard because they were so unprepared. Legacies and athletes would also do better at lesser schools by Scalia’s reasoning.

Scalia also doesn’t take into account many realities of higher education. For vast numbers of programs such as engineering, hard sciences, medicine and law, there is no difference between what is taught at any university. The only difference is who teaches it. An engineering course will be just as challenging at Harvard as at Arizona State as at New Jersey Institute of Technology. Why shouldn’t someone deprived of the breaks routinely given to legacies get a chance to interact with a more prestigious and probably better connected professor at an elite school? Society will benefit from the greater diversity and equality of wealth and income that will ensue.

As to much of the rest of the university curricula—the humanities and social sciences plus the burgeoning if sometimes dubious fields that try to apply the research in those venerable disciplines such as mass communications and marketing—grade inflation over the past few decades has eroded my confidence in the meaning of the grade performance at the university level. 

I also find that the easier SAT test no longer serves as a valid measure of how the very most talented students are performing in relation to each other, and so is of no value in sorting which kids should go to the very top universities and which belong in the next level down.

Universities mouth mealy justifications for admitting great athletes and the children of former grads. Their reasons for affirmative action are much more compelling: those admitted under affirmative action programs have often gone to segregated schools with fewer resources, not gone to specialty camps or taken SAT prep course, not had consultants help them write their essays. Some may have suffered food insecurity or other trauma, which research now tells us will reduce a person’s ability to perform on an intellectual level. Some suffer because of the reverberating effects of racism through the decades: There is little social mobility in the United States, and the ancestors of most affirmative action students were slaves, including those who come from middle class backgrounds.

The Wall Street Journal is carrying an opinion piece by Jason l. Riley, another of what seems to be an army of right-wing policy analysts from the Manhattan Institute, which praises Scalia’s comments. Riley argues that society suffers by allowing less qualified affirmative action applicants to attend elite schools instead of the more qualified because the school at the second tier now has to go to even less qualified applicants creating a chain of less qualified applicants attending each subsequent level of school. That reasoning doesn’t take into account that the white who is bumped from Harvard or Michigan for an affirmative action candidate—or a legacy or athlete for that matter—will now bring up the standards of the lower rated school.

Riley uses anecdotal evidence to state that affirmative action students do less well in college. I was unable to find any large study on the topic, but it seems beside the point for several reasons. First of all, we don’t ask the same question of legacies and athletes, although I suspect that since they come into schools less qualified than affirmative action students they will perform worse. Besides, the leading institutions have a value beyond the grade point average. In fact, the value of the elite diploma outweighs the grades for many—just ask Al Gore, Jack Kennedy, Teddy Kennedy or George Bush II.

Perhaps the most significant reason that the performance of affirmative action students is a moot point is that affirmative action is not about guaranteeing success, but about creating opportunity. Affirmative action gives someone from a disadvantaged background the opportunity to make it. As in the Texas case before the Supreme Court, the kids who get accepted to elite schools on an affirmative action basis are no slouches, and often the tops in their school and tops in the competitions in which they have participated. They deserve the opportunity to attend the elite school at least as much as the gifted athlete or the pampered scion of a wealthy family.