Scalia Comments Shine Light on U.S. Institutional Racism

1210_Justice Antonin Scalia Racism
U.S. Supreme Court Justice Antonin Scalia listens to a question after speaking at an event sponsored by the Federalist Society at the New York Athletic Club in New York October 13, 2014. Justice Scalia is under fire for his recent comments during a case on affirmative action. Darren Ornitz/Reuters

Supreme Court Justice Antonin Scalia's reprehensible suggestion that affirmative action harms blacks by offering opportunities that transcend their intellectual talents and abilities exemplifies the crisis of institutional racism at the heart of American democracy.

That a sitting Supreme Court justice could feel emboldened enough to articulate the kind of boldfaced belief in white supremacy thought to have ended with formal racial segregation illustrates the contours of the nation's New Jim Crow, a system that justifies the dearth of African-American bodies in predominantly white spaces by questioning whether they truly belong there in the first place.

Scalia made the suggestion this week during oral arguments for Fisher v. University of Texas. After admitting to not being "impressed by the fact that the University of Texas may have fewer" African Americans, Scalia went further: "Maybe it ought to have fewer. I don't think it stands to reason that it's a good thing for the University of Texas to admit as many blacks as possible."

Such sentiment echoes the tragic wisdom of the 19th-century Supreme Court, which ruled in the infamous 1896 Plessy v. Ferguson case that "separate but equal" was constitutional. Scalia's reasoning on race and democracy would find a place on that court and, unfortunately (if not shockingly) it has found a place on the 2015 version of the U.S.'s highest court.

Scalia's rhetorical broadsides serve as a rejoinder against research that shows that a diverse classroom setting enhances the intellectual experience of students—making them, in effect, smarter. It also ignores, before the case has been officially decided, the pleas of university leaders—including UT President Greg Fenves's plea—to maintain a robust and racially diverse university community.

Related: Justice Scalia Under Fire After Comments on Affirmative Action

In a very real sense, Scalia's words comprise a bold repudiation of historic and contemporary movements for racial justice. Affirmative action's historic roots can be traced back to the Kennedy and Johnson administrations, which used the phrase to promote equal access for blacks in the building trades. For a time, affirmative action enjoyed bipartisan support, with Republican President Richard Nixon championing the policy (via his special black adviser Arthur Fletcher) as the kind of racial justice reform he could support.

America's precipitous economic decline during the 1970s left the policy vulnerable to charges of reverse racism and worse, even as, statistically, white women benefited from affirmative action in far larger numbers than African-Americans. The Supreme Court's 1978 Bakke decision narrowed, but did not eliminate, the use of race in university admissions, something conservatives have been intent on completing ever since.

The ugly truth—that historically affirmative action has been exclusively reserved for privileged white Americans (mostly male until the civil rights revolution)—is rarely, if ever, acknowledged.

Certainly not by Justice Scalia.

The recent racial justice movement that has roiled major universities this fall has galvanized national attention on the Fisher case. Students from a wide range of universities have demanded an end to institutional racism and damaging campus culture that demonizes and disparages African-Americans and other students of color across the nation. These young activists have waged hunger strikes, sit-ins, walk-outs and demonstrations that have taken America back to the raucous student protest movements of the civil rights and black power eras. Social media has been used as both a sword—to cast a strobe-light on stories ignored by the mainstream media—and a shield—to defend the ceaseless efforts to impugn black protesters as angry fomenters of racial grievance.

Black students' efforts to transform the face of higher education by calling for a more diverse faculty, staff, administration and student body is part of the larger social justice movement embodied in that persistent clarion call that has become a generational and global anthem: Black Lives Matter.

That phrase, in all its complex beauty, culled generations of heroism and hardship, triumphs and tragedies, successes and setbacks, into three simple words. The #BlackLivesMatter hashtag always transcended the call for criminal justice reform, stopping police violence and ending mass incarceration, as important as these issues are.

Similarly, black students and their allies who have disrupted the status quo at major universities have protested for far more than greater resources, recognition and respect, as important as these issues are.

Like their civil rights forbearers, contemporary activists have been at the cutting edge of a human rights movement, one that reaches for the universal through the specific realization that African-Americans remain dehumanized and denigrated in the land we have lived and toiled in, fought for and bled on since before the nation's founding.

Scalia's brutal words throw into sharp relief what contemporary racial justice advocates are fighting for.

Given Scalia's words, is it any wonder we live in a nation where unarmed black men and women are routinely killed, where African-Americans are criminalized from birth and where schools and neighborhoods remain widely segregated?

The criminal justice system, like all American democratic institutions, is a reflection of our political, economic and social culture. It responds and reacts according to the nation's collective will. The same historic context that necessitated a bold new social movement that proclaimed black lives matter has produced a parallel reality where anti-immigration fever runs wild, religious intolerance is accelerating and a jurist on the nation's highest court proudly says that black lives don't matter, at least with respect to equal opportunities to attend the nation's leading educational institutions. In a certain light, Scalia has done a new generation of social justice advocates a major service by publicly acknowledging what they know in their hearts—that major American democratic institutions ranging from higher education to the criminal justice system and the Supreme Court remain unapologetically hostile to black equality.

Peniel E. Joseph is a professor of history at the LBJ School of Public Affairs at the University of Texas at Austin and the founding director of the Center for the Study of Race and Democracy Tufts University. He can be followed on Twitter, @PenielJoseph.