By Julianne Malveaux

On the same day that President Obama gave a stirring and historically grounded commemoration regarding the 150th anniversary of the passage of the 13th Amendment that “abolished” slavery, U.S. Supreme Court Justice Antonin Scalia chose to disregard tenets of equality and opportunity from the bench during the Fisher v. University of Texas hearing when he suggested that African-American students would benefit more if they went to “lesser track” schools. 

His verbatim comments:

“There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do slower-track school where they do well,” Justice Scalia said. “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.”

What does Justice Scalia mean by “lesser schools?” Does he suggest that African-Americans at the university, most in the top 10 percent of their high school class as required by Texas law, can’t compete with their peers, similarly situated students at the top of their classes? 

Abigail Fisher, who brought this lawsuit, was deficient, and judged as so. She was not in the top 10 percent at her Texas high school. According to the Top Ten Percent Plan in Texas, any graduating senior in the top 10 percent of their graduating class receives admission to the University of Texas at Austin. More than three quarters of the slots at the University of Texas-Austin are reserved for that group of students — the best and the brightest of their high schools. 

Ms. Fisher didn’t make the cut. A middling student, she had not enough redeeming social value to be considered among the 8 percent whose admission is a function of the Personal Achievement Index (PAI) and Academic Index (AI). These are the folks who, based on their race, socioeconomic status, family background, extracurricular activities and other factors, stand out. These folks are not all African-American. In fact, of the 841 students who make up the 8 percent, only 47 of them scored lower than Ms. Fisher and only five of them were African-American. They are folks whose portfolio deserved special consideration.

Ms. Fisher is an ordinary white girl who was so seeped in white skin privilege that she fully expected to have her way. She is a whiner who has been enabled by the anti-affirmative action crowd. She is pushing a point because she cannot own her own deficiencies. She is attacking affirmative action because that is her excuse for being deficient and mediocre.

Lots of students don’t get into their first choice school. Most recover. They go to their second or third choice, graduate and manage their lives happily. From time to time, they may ruminate that they would have liked to have their first choice. They may show up at football games, cheering for the school they weren’t admitted to, or they may relish the success that comes to them despite their early disappointment.

But they are grown people, used to a setback (who isn’t?) and prepared to move on with their lives. They know they weren’t in the top 10 percent, and they are happy if they made the second cut at UT or are content to go to another school and excel. Not Ms. Fisher. Buttressed by the dollars that come from affirmative action opponents, she is willing to be the poster girl for inadequacy.

From his remarks from the Supreme Court bench, Justice Scalia is willing to consider her point and exhibit his own racism. What does he mean by “lesser schools?” Is he familiar with the data on African-American accomplishment?  Does he share the same hubris that Ms. Fisher does, asserting that a deficient white student deserves an edge over a well-prepared black one?

Justice Scalia needs to look at the data before running his mouth. Both African-American and white students go to schools that are less highly rated than the University of Texas —lesser schools, really. Most of them succeed. They would have succeeded at UT, too. Regardless of race, they accept the fact that, not in the top 10 percent of their class, they were not entitled to admission. After that, their admission was a roll of the dice.

While President Obama talked about freedom, invoking the history that made the 13th Amendment important, reminding us of “the preachers, black and white, (who) railed against this moral outrage from the pulpit.”

Where are the preachers today? They know that there are racial economic gaps, but they are silent. They know that there is a structural racism that perpetuates unfairness, but they are unwilling to fight against it. They will offer preaching, perhaps tepid, perhaps rousing. But they won’t step up and attack the systems that produce disparate economic results. They won’t condemn attacks on affirmative action.

How could Justice Scalia respond to President Obama’s eloquence with his white-privileged arrogance? If there is a poster girl for fairness, she isn’t Abigail Fisher. To lift her up is to embrace the arrogance of white skin privilege. To lift her up is a disgraceful rebuff to the Texas students who achieve against all odds. To denigrate the student who were admitted instead of Ms. Fisher is a laughable attempt by a so-called justice to justify his injustice, and it flies in the face of the remarks our president made when he spoke of the 13th Amendment.

The writer is an author and economist based in Washington.