Last week I, like others, was taken aback by Justice Scalia’s comments during oral argument in UT law school affirmative action case (Fisher II, comments on pp.67-68).  To me it sounded like an endorsement of separate but equal, and I made a tweet to that effect.  But since then, I’ve had an actual constructive interchange with a conservative friend on Facebook that has inspired me to write more—if only to prove that there is such a thing as a constructive political discussion on Facebook.  I will stand by my tweet (that’s a sentence I never thought I would ever write sincerely) and want to address my thoughts to five points.

First, that the language we use to discuss the position matters.  It is the way Scalia talked about the issue that justifies my characterization of it, whether or not one believes in mismatch theory generally.  Second, that there is, in fact, a problem with race in education in this country in general and with lawyers in particular.  We might disagree on the means to redress it, but we should all be dissatisfied with the scale and scope of the problem.  Third, that there’s more than one way to build an admitted class.  So much of the discussion seems to focus on the “fact” that better LSAT’s make a better candidate, when much of admissions is moving towards other criteria, including non-cognitive criteria.  Fourth, that really addressing diversity doesn’t just end with admissions.  If we only change the way we admit students but not the way in which we support and address their needs, then we’re not good teachers.  And finally, I think the practice of law in particular has important social networking effects, effects that translate into real opportunity.

The language

Language matters, particularly to lawyers.  I spend a lot of my time in my first year criminal law classes talking about the meaning of words, how different word selections or definitions can change outcomes.  I tell students that they need to focus on what “reasonable” or “armed criminal” or “theft” or “interrogation” really means.  I do this because lawyers argue over the meaning of words and know that they need to be precise.  Here is what Justice Scalia said (again, go to pp.67-68):

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 being pushed ahead in classes that are too fast for them.”  (The ellipses just mark where he was interrupted.)

Either Scalia meant what he said or he spoke indelicately.  Neither interpretation is good news.  The choice of words—“less-advanced,” “slower-track”, and “lesser schools”—does nothing if not convey the idea that the students in question belong at a school that is not as good as the University of Texas.  These are loaded terms, stigmatizing terms.  They were made by a sitting justice on the highest court in the land, and his use of this kind of language sends a message that powerful people believe certain things about where African-American students belong.  Brown taught us that “A sense of inferiority affects the motivation of a child to learn.”  In Brown, it was state-sanctioned de jure segregation, but the larger point, in my view, is about the sense of inferiority, not the source of it.  I teach at a school that is usually in the top 5 in racial and ethnic diversity, and I can tell you that our students feel that Scalia was telling them they were inferior.  It would be cold comfort to tell them that the source of this statement was “just” a sitting Supreme Court justice in 2015 and not a state legislature in the 1950s, and that the procedural posture of the case was different.

So, granted, this isn’t the same as Plessy’s doctrine of separate but equal.  But, as another friend of mine pointed out, perhaps it’s not better.  Scalia seems to be saying not so much separate but equal but “separate-but-unequal-and-that’s-OK”.

The problem

White people and black people live in different worlds; African-Americans are much more likely to go to prison, and much less likely to go to college, than similarly situated white people.  The racial achievement gap in secondary education is as wide as ever.   In California, otherwise a bastion of multiculturalism, almost 80 percent of lawyers are white; prosecutors are 70 percent white (but constitute 38 percent of the population).

So the problem exists.  We’re just talking about the remedy.  I would have much less of a problem if, in discussing affirmative action, people said, “These are outrageous gaps based on race.  We really need to do something about the problem.  It’s just that this remedy is not the one we should be pursuing.”  I don’t get that from Scalia’s comments during oral argument.  I have as a goal the elimination of gaps due to one’s demographics (including not only race but, inter alia, religion, gender, sexual orientation, and economic class).  So the issue is not just “not this” but it has to be “let’s instead do this” or at least “it’s difficult that I can’t legislate from the bench but I at least see that there’s a problem.”

If, writing on a blank slate, would I choose as an intervention point law school admissions?  No.  I think the problem is further upstream, in primary and secondary education.  But let’s look at how Texas is doing there.  There are significant racial disparities in Texas administration of school discipline, a pattern that is mirrored nationally.  Racial segregation in primary and secondary education is a big contributor to the achievement gap, though this might be because those schools are poorer—but that just begs the question about why schools of color are also poor.  Intervention at the law school might be too late, but it’s at least something.  Doing nothing is not, in my view, an option.  So if you’re opposed to UT’s admissions policies, I want to know what the alternative is and what you’re doing to support it.


The LSAT isn’t perfect, as anyone who has taken it will tell you. It has predictive value on things like bar passage rate, but there is always the problem of hidden variables (and also the question of whether students are, you know, also learning something in law school that correlates with their future academic success).  Maybe LSAT scores correlate with academic outcomes only because both the LSAT and the academic outcomes are related to a third variable, like work ethic.

What’s interesting about the focus on test scores as a measure of whether someone deserves admission is the move towards non-cognitive assessments in admissions (subscription).  Focusing only on cognitive assessments misses other skills crucial to life success.  Admissions offices are moving towards these assessments because they want these students, and because they, who deal with admissions tests on a daily basis, don’t have complete faith in them as the arbiter of the admissions decision.

Why?  Because there are a number of ways to build a class.  What is the goal of a law school?  To have students make good grades or to make good lawyers?  To have someone just pass the bar or to be a good counselor, interviewer, negotiator, client manager?  Schools have an interest in other kinds of assets—particularly law schools—because the ABA is pushing law schools towards the acquisition of clinical skills, business development skills, and collaborative skills.  Students are being told that the future is collaborative and diverse.  Knowledge changes, particularly in the law.  Mastering a static set of facts doesn’t cut it.  Diversity is a valued skill because the market is demanding it.  Why can’t UT decide that this is part of its mission?

Don’t stop with admissions

Of course, just admitting students isn’t where the education ends.  It should be where it begins.  Here, I think, schools do have a ways to go in terms of both capitalizing on the assets of their students and in addressing certain shortcomings that might be opaque to the average law professor.  I know I benefited by talking to my wife and her managing partner before going to law school about how they did it (both of them, I should say, people of color, and I am white).  But we should recognize that cultural capital has compound interest—knowing a lawyer to talk you through some of the cultural aspects of the profession is key.  Many of my students are the first in their family to go to college, let alone law school.  There’s a lot they don’t even know they don’t know, and it might matter when it comes time to interview or write a resume.

The social nature of law

Why is it better to graduate from one school rather than another?  What makes a UT degree valuable?  At least part of it is the social networks you’ll make.  It might be better to graduate from the bottom of a great school than the top of a poorer one because of the people you know.  This is particularly true of the law because the practice of law is intensely social.  It wasn’t too long ago that lawyers couldn’t advertise at all.  That’s still reflected in the profession, since referrals are the key not only to jobs but to getting new clients.  When you need a lawyer, quality matters.  You don’t tend to use Yelp and the opinions of strangers—you ask someone you know for their recommendations.  And if you already have a lawyer for one aspect of your life, you’ll ask him or her.  Many of their contacts will come from law school classmates.

So what have I learned?   Maybe that I’m probably ill-suited to blogging—I either want to send out 140 characters or 1600 words.  But I hope this engenders further discussion.

[Cross-posted at The Reality-Based Community]

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David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.