Scalia Consistent in his Support of a hypocritically American interpretation of the 14th-Amendment

Scalia’s racist rhetoric during the recent Fisher oral arguments alluding to “Separate but Equal” schools benefiting Blacks seemingly supporting society’s return to segregated education, should come as no surprise.  In 1979, Scalia, then a law professor, pinned a law review article responding to Justice Marshall’s stance on affirmative action in the Bakke case, indicating that such policy was unconstitutional because it would prefer the son of a prosperous and well-educated black doctor or lawyer … to the son of a recent refugee from Eastern Europe who is working as a manual laborer …[and is] based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual needed”. How ironic that Scalia now believes that individual worth and need is irrelevant when the person is Black?  Not ironic at all for a bonifide American.  To be clear, American jurisprudence has historically written in a level of minority inclusion, while enforcing the level of exclusion necessary to maintain status quo.

American jurisprudence has consistently interpreted civil rights in a manner which parallels the Supreme Court’s Dred Scott ruling that the framers of the beautifully written Constitution were not including Blacks as beneficiaries and as such were unable to seek protection from the federal government or courts.  Scott was never overturned and America continues to operate under its premise.  Some say that the 14th Amendment’s ratification a decade later sufficiently overturned Scott, as it explicitly states that persons born in America are citizens.  Regardless of the Amendment’s verbiage; however, during its passage, Congressman Thadeus Steven explained that “civil equality did not mean a Negro should sit on the same seat or eat at the same table with a white man.” In confirmation of this segregationist notion, the Supreme Court in its infamous Plessy v. Ferguson case initiated the “Separate but [Un]Equal” doctrine, stating “the 14th Amendment could not have been intended to abolish distinctions based on color … or [inform] a co-mingling of the races.” Thus, there should be no surprise that Scalia is following his ancestral precedent by stating that Blacks should go to their own schools.

To be clear, America was created through the enforcement of race-based discrimination.  Segregation was perpetuated with explicit race-based policies. Even the Melting Pot theory was initiated to sustain homogeneity. Is America now concerned with racial discrimination? No! Instead, America is concerned with racial competition.  America has always been concerned with minority integration interfering with its white population’s ability to sustain superiority. Race-based policy does not concern America until its purpose is incorporating minorities.  Since integration, the law has teetered-tottered on its restriction of minority inclusion.  From Bakke to Hopwood to Grutter and Bollinger to contemporary Fisher, white America continuously fights minority inclusion in “their” institutions.

This brings us to certainly the most disturbing of Scalia’s statements: “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 … where they will do well.” This is an explicit revitalization of the 20 year-old Bell Curve theory by Heinstein and Murray which argues that Blacks inherently have lower cognitive abilities than Whites.  There was no evidence presented in the 100 page oral argument transcript indicating that Blacks had a difficult time once allowed into Univ. of Texas. To the contrary, the school’s persistence rate is comparable between White, Black and Hispanic students.
The media has misleadingly suggested that Black students were allowed into U-of-T based solely on race; yet, this is not the case. Specifically, in 2008, Fisher not being in the top 10% of her high school class, had to compete for the remaining 8% of the entering class.  Any consideration of race was only a subset of 1 of 7 equally weighted factors making up a personal achievement index, which is considered along with an academic index.  The Black students admitted to U-of-T are highly qualified candidates with leadership, work experience, acceptable SAT scores, etc.; it has been conceded that Fisher was not.  Even if given the disputed 1/42 of a bonus point for race, she still would not have scored high enough on the indexes to get in. There is no viable concern that unqualified Black students are taking spots from qualified White students.  Clearly, Fisher’s suit is based on her dismay that if she could not be admitted into an institution, certainly, no one Black should have.  So, again, this is really about minimizing competition to maintain the status quo.

The crux of the Fisher oral arguments was if, how and why racial diversity in school was important.  This reflects white society’s contradictory position that diversity only benefits the minority who should appreciate being in the presence of white America. America seems to forget that the rest of the world is every color but white, and to be in position to globally compete and operate, white has to learn how to interact and work with non-white persons.  Scalia, although following the path of his ancestors, is perpetuating a myth of superiority which is going to be damaging to America in the long-run because minority competition is inevitable.  Will America ever be ready for it?