Justice Scalia, Affirmative Action, and the Bogus Theory of “Mismatch”

In case you haven’t heard yet, here’s what U.S. Supreme Court Justice Antonin Scalia had to say yesterday during oral arguments over the case, Abigail Noel Fisher v. University of Texas at Austin, which centers on the constitutionality of admissions criteria that take race into consideration as one factor, what remains of the principle of affirmative action:

Justice Scalia: There are — there are those who contend that it does not benefit African-Americans to —  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 less — a slower-track school where they do well. One of — one of the briefs pointed out that — that most of the — most of the black scientists in this country don’t come from schools like the University of Texas.

Mr. Garre: So this court —

Justice Scalia: They come from lesser schools where they do not feel that they’re — that they’re being pushed ahead in — in classes that are too — too fast for them.

Wow!!  What was he trying to say, really?  According to an explication of his comments in today’s Chronicle of Higher Education, Scalia might have been referring to the idea of “mismatch,” a notion which contends that students admitted to a college under a preference, despite having allegedly weaker academic credentials than the college’s typical student, are less likely to succeed.  The idea has won support from conservative think tanks and scholars like economist and law professor Richard Sander at UCLA, author of a controversial study ostensibly demonstrating that if law schools eliminated racial preferences there would be more black lawyers.  In a blog post published yesterday, Sander claimed that only “people who haven’t read the relevant literature can still claim that mismatch is not a genuine problem.”

That’s not the view of Matthew M. Chingos, a senior fellow at the Urban Institute, who was one of the authors of Crossing the Finish Line: Completing College at America’s Public Universities, a scholarly book based on research that found that whatever students’ grades and test scores, they were more likely to graduate if they attended a more-selective college.  Mismatch is “not crazy-sounding in theory,” Chingos told the Chronicle.  And there are circumstances under which it would happen: “If we took someone who couldn’t read, they’d be unlikely to succeed at Harvard.” But the real question is whether colleges’ actual policies designed to encourage diverse admissions really do admit students who are not likely to succeed. “There is no high-quality empirical evidence in support of that hypothesis,” he said.  As Chingos wrote in a 2013 paper debunking much of the “mismatch” literature,

the current weight of the evidence leans strongly against the mismatch hypothesis. Most importantly, not a single credible study has found evidence that students are harmed by attending a more selective college. There may well be reasons to abolish or reform affirmative action policies, but the possibility that they harm the intended beneficiaries should not be among them.

Scalia’s remark that “most of the black scientists in this country don’t come from schools like the University of Texas,” may have been referencing research showing that historically black colleges produce a disproportionately high percentage of African-American graduates who go on to earn doctorates in science, technology, engineering, and mathematics.  But, so what?  Why should that mean that black students have any less likelihood of succeeding at more diverse institutions?  Chingos offered an analogy: Most Pell Grant recipients who earn bachelor’s degrees don’t get them from top colleges.  That’s a question of enrollment patterns and volume.  But a particular Pell-eligible student would still have a higher chance of graduating if he or she went to a more-selective college.

All that said, however, perhaps the most meaningful question to ask about Scalia’s at best insenstive remarks is whether or not there’s any evidence suggesting that he, along with other advocates of the “mismatch” thesis, really care at all about whether African-American students succeed in college anywhere.  This is the point made forcefully and effectively by the always-interesting and perceptive blogger Tressie McMillan Cottom:

The painful truth about hand-wringing over whether Affirmative Action “harms” racial minorities is that no one cares if Affirmative Action harms racial minorities. The faux concern for the well-being of poor put-upon non-white students who are promoted beyond their ability never extends to concern for the many more white students who are surely promoted beyond theirs. At the same time we have debates about whether any student learns anything in college anymore (see: Academically Adrift), we also debate if there is too much learning happening for poor non-white students. And we care about that only as it is politically convenient to defend the legacy preferences, white preferences, athlete preferences and donor preferences at colleges and universities. With friends like this, as the saying goes, non-white students don’t need enemies. . . .

Whether black or hispanic students do not like the culture, drop out, transfer, get an F in freshman comp is not the issue. The issue is not individual performance but institutional exclusion. Of course, these universities could agree that the mismatch is just too great to bear. They could concede that the greatest universities in the world are just too fragile for a few thousand or so non-white, non-legacy students to exist on the yard. It may be the case that for all of our collective brilliance and innovation we simply cannot overcome the compound effects of white racism and residential segregation and educational stratification. In which case, put these institutions out of their misery and turn off public funding for them and to them. The mismatch between what they are and what a just, diverse, and ethical society needs may well be too great.

Cottom is right.  If our colleges and universities cannot accommodate the needs of minority students, of economically disadvantaged students (and remember the recent study that revealed how many community college students are currently homeless), immigrant students, and those with disabilities, then what on earth are we doing?  And what justifies public investment in our work?

What is really striking in all this is how Scalia so cavalierly ignores evidence and relies solely on his own speculation and, yes, his prejudices.  But perhaps that suggests that maybe it’s Scalia, despite his admirers’ tiresome and insufferable claims about his tremendous “intellectual firepower,” who is the one “mismatched” with his position.  That’s the point made by satirist Andy Borowitz, who writes:

A new study conducted by legal scholars indicates that Justice Antonin Scalia would fare better if he served as a judge at a court that was “less advanced” than the United States Supreme Court.

According to the study, Scalia’s struggles to perform his duties in a competent fashion stem from his being inappropriately placed on a court that is “too demanding” for a person of his limited abilities.

“Forcing Justice Scalia to weigh in on complex legal issues that he lacks the background or aptitude to comprehend is, at the end of the day, cruel,” the study said.

The legal scholars theorized that Scalia would be more likely to thrive in a “lesser court where he does not feel that he is being pushed to hear cases that are too challenging for him.”

“If Scalia were reassigned to a ‘slow track’ institution such as a town traffic court, that would be better for everyone,” the study recommended.

Now there’s a useful program of affirmative action!

 

10 thoughts on “Justice Scalia, Affirmative Action, and the Bogus Theory of “Mismatch”

  1. Your argument seems to be that the mismatch theory has flaws, but the real problem with what Scalia said is that his invocation of a disputed theory *might* be secretly in favor of ending a policy because it actively discriminates against whites.

    Interesting how we hear constant talk of “white privilege” and, yet, the only way race based affirmative action can be challenged without being called racist is by arguing that it is in the best interests of the minorities to end it.

    It may well be in the interests of minorities to keep race based affirmative action (or it may not be based on the validity of the mismatch theory). But, the broader issue is that it’s harshly unfair. It is discriminatory against, yes, white students (just non privileged white students though). And the discrimination is in favor of minority students (other than asians).

    We know that, for private institutions, a black student, with factors like test scores, GPA, etc. held equal, is about 5 times more likely to gain acceptance at a private university than a white student. The difference is even more stark at public institutions.

    Research indicates that the benefit of being black when applying to college, all else equal, is greater than legacy status or being a student athlete. How is that, in any way, fair?

    The irony of all this is that the defenders of race based affirmative action see themselves as opposing the elite and legacies. The opposite is true. People who benefit from legacy status are opposed to the exact same thing affirmative action advocates are: merit based admission.

    Affirmative action allows legacy students and elites to appear to be fighting institutional privilege while really just allowing a large group of token minorities who don’t really compete for the same jobs or, due to lower GPAs and achievement, won’t get them if they do. Affirmative action is a win-win for the privileged elite: they get to look like their against institutional privilege without actually giving any up for them or their kids.

    Legacy students competing with students who got in based on race is a lot easier than competing with students who got based on merit. But, all this is lost on the advocates for affirmative action who, when you come right down to it, are really useful tools in maintaining institutional privilege.

    • I totally disagree. First of all, I highly question your statements that “we know” and “research indicates” that black applicants are advantaged. I know of no such research that proves that, unless it is limited to a highly restricted group. To say “we know” this is simply to repeat unquestioned presumptions, and, at best, the “research” is contradictory.

      The simple fact is that black and hispanic students are overwhelmingly underrepresented in higher education. Why? And how can that be changed? Those are the questions to ask. In addition, your evocation of some abstract “race-based affirmative action” substitutes a bogeyman for reality. The Texas program under consideration by the court has two parts. The first part guarantees admission to anyone who graduates from a Texas high school in the top 10%. That’s the same whether it is a wealthy suburban high school or an underfunded inner city or rural high school. This accounts for about 75% of admissions and it employs no race-based criterion at all, except that given residential segregation it ends up guaranteeing more minority admissions. Do you think this is discriminatory? If so, isn’t the solution for Texas to make their high schools provide more equivalent educations?

      For the remaining 25% of admissions Texas uses multiple criteria, including the racial diversity of the freshman class. That is not discriminatory, if one believes as many of us do, that a diverse student body is an educational asset just as having some musicians, some athletes, some international students, etc. Moreover, using a holistic approach means that one cannot make any clear statement that a given student was admitted “because he or she is black.”

      In other words, the Texas program guarantees admission to the university to a well-defined group of academic achievers (the top 10% of all high school graduates) regardless of race and then supplements that group by applying a variety of criteria designed to produce a class that will provide the kind of diverse educational experience that should be valued.

      The fact is that whatever measure you choose discriminates. If you decide on the basis of standardized tests you discriminate against those who are poor test takers or who have not had the advantage of taking expensive test preparation courses. If you decide solely on grades you discriminate against those who take more challenging courses, and never mind that grades are not objective, standardized measures but subjective, non-standard measures. It’s all discriminatory; it’s a matter of selection.

      Finally, it is disingenuous at best to rail against so-called “discrimination” against a small number of white students who believe (falsely) that they have been denied admission to some selective institution because of their race, but ignore the systematic and institutional racism that severely restricts educational access for the great majority of black and hispanic youth as well as poor youth of all races.

      • “I totally disagree. First of all, I highly question your statements that “we know” and “research indicates” that black applicants are advantaged. I know of no such research that proves that, unless it is limited to a highly restricted group. To say “we know” this is simply to repeat unquestioned presumptions, and, at best, the “research” is contradictory.”

        Fair enough. I should’ve included links to the research. First, here is the study on the benefits of various applicants:

        http://onlinelibrary.wiley.com/doi/10.1111/j.0038-4941.2004.00284.x/abstract

        They find the benefit of being black when applying to a selective private institution is roughly the equivalent of 230 additional SAT points, compared to 160 additional SAT points for a legacy and 200 additional SAT points for a recruited athlete.

        Other research comes from this book:

        http://www.amazon.com/exec/obidos/ASIN/0691141606/ref=nosim/nationalreviewon

        The research is summarized here:

        http://www.nationalreview.com/article/228682/racial-preferences-numbers-robert-verbruggen

        And, before you say it, yes, the National Review is a biased source, but, in this case, it is merely bringing light to results from unbiased study that much of the mainstream media is intent on ignoring.

        Once again, being black with the same test scores and GPA as a white student, brings a 5 times greater likelihood of being accepted at a private institution. In terms of SAT advantage, that’s the equivalent of a 310 point, on average SAT advantage for black applicants.

        Similar results can be found for law school and medical school. There is certainly some debate on the size of the effect, but it is well established that there is a huge benefit to being black when applying to college.

        “The simple fact is that black and hispanic students are overwhelmingly underrepresented in higher education. Why? And how can that be changed? Those are the questions to ask. In addition, your evocation of some abstract “race-based affirmative action” substitutes a bogeyman for reality. The Texas program under consideration by the court has two parts. The first part guarantees admission to anyone who graduates from a Texas high school in the top 10%. That’s the same whether it is a wealthy suburban high school or an underfunded inner city or rural high school. This accounts for about 75% of admissions and it employs no race-based criterion at all, except that given residential segregation it ends up guaranteeing more minority admissions. Do you think this is discriminatory? If so, isn’t the solution for Texas to make their high schools provide more equivalent educations?”

        It would be much easier for a student of average intelligence to compete and land in the top 10% of an underfunded school with poorer overall grades and less difficult teachers compared to a harder school. So, if you’re an intelligent young person trying to graduate in the top 10% of your class, where would that be easier?

        As for school funding, much of that is determined at the local level. So, it stands to reason that wealthier areas would have more school funding. That’s not discrimination. It’s basic finance and economics.

        The most important point here is your invoking the underrepresentation of black and hispanic students in higher education. Fair enough. But, I would respond two fold. First, there is only selective concern for underrepresentation of groups in higher education. Caring about the outcomes of blacks and hispanics is in. Caring about the outcomes of say… men, is out. Yet, it is undeniably true that men are also underrepresented in higher education. Where’s our affirmative action program!?

        Of course, automatically assuming men being underrepresented in higher education means anti male discrimination and thus affirmative action for men is poor logic. It’s wrong to automatically assume discrimination (current or past) is the sole explanation for all group disparities.

        It’s funny how little we talk about asians in this context. This was a group that, by all measures, has been historically discriminated against. From internment camps to all sorts of institutional discrimination, Asians certainly should qualify as an historically oppressed group. They, historically, had less access to poorer funded educational facilities compared to whites. Apparently they never got the pro affirmative action memo about racial minorities needing massive amounts of racial preferences in order to achieve equity due to past discrimination. They now outperform whites in terms of education and income and are far overrepresented in high status universities. What gives?

        A lot of things, possibly. We don’t know exactly. What we do know is that the example of Asians is a powerful rejection of the pro affirmative action narrative that all disparities that currently exist between groups is based solely on discrimination. There are other possibilities, most of which are far better explanations than “white racism!” for disparities in average outcomes for different racial groups.

        “For the remaining 25% of admissions Texas uses multiple criteria, including the racial diversity of the freshman class. That is not discriminatory, if one believes as many of us do, that a diverse student body is an educational asset just as having some musicians, some athletes, some international students, etc. Moreover, using a holistic approach means that one cannot make any clear statement that a given student was admitted “because he or she is black.””

        Absolutely that statement can be made. If student A is white with a 1400 SAT score and 3.8 GPA and student B is black with a 1260 SAT score and 3.6 GPA (and they are otherwise similar) and only student B gets in due to racial preferences, then, for all practical purposes, student B got in for being black.

        As to the point about diversity always being a wonderful thing, I’d say that you’re wrong. There are some studies that find diversity increases people’s willingness to question other’s conclusions and thus diversity leads to more discussion. These studies are often trumpeted by pro affirmative action advocates. What you won’t hear is the reason.

        In fact, the only benefits that come from diversity are really merely results of the overall effect of diversity: reducing social trust. Robert Putnam famously found that more racial and ethnic diversity led to much less social trust. Is that a good thing for colleges?

        At most, the effects of diversity are not clear. At least, they are negative.

        Furthermore, I think it is obviously ridiculous to compare affirmative action to privileging students that have special talents. Being born into a minority group doesn’t entitle you to the same privileges that someone who is an extremely talented musician gets.

        In some contexts, a diverse student body can be better. For example, I’d say colleges would be far better off if conservative voices weren’t so marginalized on campus. But, I’d doubt that’s a problem you’d be interested in tackling, partially because the very advocates of diversity that you’re so excited about has led to protests interested in stamping out those perspectives.

        In reality, having a talent is having a talent. Being from a certain race or ethnicity is a totally different thing. And, it’s hardly clear that college campuses are better off for being more diverse. Even if it were, it would still be very much a violation of our meritocratic values to privilege minority groups in admissions. Especially given that there is little evidence that more diversity is really the wonderful thing advocates believe, racial affirmative action is both discriminatory and impractical.

        “In other words, the Texas program guarantees admission to the university to a well-defined group of academic achievers (the top 10% of all high school graduates) regardless of race and then supplements that group by applying a variety of criteria designed to produce a class that will provide the kind of diverse educational experience that should be valued.”

        In other words, it offers racial preferences and privileges in the name of diversity. And, as we learned from Princeton and Yale this fall, part of the diverse educational experience is racial hate hoaxes (black students faking racial hate crimes against themselves such as the racial “black tape” hate hoax at Harvard Law School), demanding famous alumni be blacklisted for not being in line with the agenda (Woodrow Wilson), and demanding faculty be fired for defending halloween costumes (Yale).

        “The fact is that whatever measure you choose discriminates. If you decide on the basis of standardized tests you discriminate against those who are poor test takers or who have not had the advantage of taking expensive test preparation courses. If you decide solely on grades you discriminate against those who take more challenging courses, and never mind that grades are not objective, standardized measures but subjective, non-standard measures. It’s all discriminatory; it’s a matter of selection.”

        Yes. But some “discrimination” discriminates in favor, on average, of smarter and harder working kids. That’s what GPA and test scores do, on average. Sure, this isn’t a perfect system. Some kids will spend countless hours and money trying to beat the test. But, for most kids, it’s a pretty good estimation of how smart they are.

        It’s certainly a better way of discriminating than privileging kids based on the race they were born into. I’d prefer discrimination in favor of hard work and intellect over race, even if that system of favoring hard work and intellect wasn’t perfect at identifying them.

        “Finally, it is disingenuous at best to rail against so-called “discrimination” against a small number of white students who believe (falsely) that they have been denied admission to some selective institution because of their race, but ignore the systematic and institutional racism that severely restricts educational access for the great majority of black and hispanic youth as well as poor youth of all races.”

        Of course, as the research I linked to above shows, it is not a false assumption for white students to make. A lot of white students, in fact, would have been accepted at an elite institution with their application had they been black. So, you’re addition of “falsely” is wrong. Evidence suggests that those white kids who believe they have been denied acceptance due to not being black may very well be right.

        Your (unspoken) assumption that all group disparities stem from institutional discrimination is likely wrong. I doubt you would say male underrepresentation in universities is due to institutional anti male discrimination. Even if you did say that, that theory is directly contradicted by the reality of Asians, who were historically discriminated against and impoverished yet still out represent and out perform whites today.

        Not all disparity automatically implies oppression. Blacks and hispanics being underrepresented in higher institutions doesn’t automatically imply oppression.

        Unfortunately, in our current thought police like regime of political correctness, we can’t even explore other possible explanations, no matter how much stronger those explanations are in reality.

      • SAT scores? Really? You must be kidding us!

        I won’t bother to go through and refute the research you cite, although I’m certain others have, except to note that the book you mention is about admissions at elite private institutions, and the Fisher case is about public institutions, many of them hardly elite. Harvard, Yale, and Princeton can do what they wish, the issue is now and always has been the public sector. But your basic argument seems to be that there is some sort of objective way we can determine which applicants are “smarter and harder-working kids,” and therefore somehow more deserving of admission, and that this apparently involves the SATs and high school grades (except you dismiss Texas’s use of the latter as itself discriminatory).

        To be sure, an applicant, white or black, with extremely poor SAT scores is likely to be more challenged by college courses than one with extremely high scores, although the former may be a more diligent worker and the latter a dissolute party-goer. The real issue is with less obvious disparities. Telling me that, regardless of race, an applicant with a marginally lower SAT score is less deserving of admission to college than one with a higher score is only a bit less meaningless than telling me that someone with 20/60 vision is less deserving than one with 20/20 eyesight. What does the SAT measure? Essentially the ability to do well on the SAT. Even the test’s sponsor, the College Board, now acknowledges that the test can be gamed in multiple ways and should not be used as an independent determinant of quality.

        It is well known that SAT scores can be improved, often quite dramatically, by costly prep courses and private tutoring, not equally available across economic and racial lines. Moreover, to claim that the SAT measures who is “smarter” is patently ridiculous. And it’s even more ridiculous to assume it measures how hard one works. Indeed, to use any one examination as a determinant of the educational future of 17-year-olds is problematic, to say the least. Just look at Communist China, where college admissions are determined solely by a uniform national exam. Putting aside the obvious discrimination of that system against impoverished rural peasants and minorities like Tibetans and Uighurs, there is the potential for corruption, recently examined in our own press. Is that the sort of system you’d prefer in this country?

        To be frank, in more than 40 years of teaching at multiple colleges and universities, public and private, in several states, I have NEVER once even considered what the SAT scores of any of my students might be. It never occurred to me to wonder whether the SAT score of a black student was lower or higher than that of a white student seated at the next desk. And that’s because the SAT is largely irrelevant to what we actually do in providing a college education. Your notion that somehow “smarter and harder-working kids” merit admission over others is not only flawed by the impossibility of measuring aptitude and diligence with any degree of precision, but it completely fails to comprehend the nature and goals of higher education and of the public’s commitment to it. Public higher education is not about rewarding the smart and hard-working; it’s about investing in the common good.

        I have neither the time nor inclination to address your other points (although to my knowledge there is absolutely no evidence at all that the Harvard black tape incident was a hoax; that’s your assumption), but I will note that your claim that “in our current thought police like regime of political correctness, we can’t even explore other possible explanations” is put to the lie by this very exchange. Frankly, in a country so dominated by white conservatives (including on the Supreme Court) the repeated whinings of white conservatives that something they call “political correctness” is silencing their voices has grown more than tiresome. It’s simply a lie.

        Finally, all this is largely off the point of my original post about Scalia’s ignorant and foolish comments, to which the response of the university’s lawyer, Gregory Garre, was spot-on: “Frankly,” Garre told Scalia, “I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools.”

        Apparently, you don’t agree.

  2. To treat Scalia’s comment as if it were of substantive value misses the point. Scalia is now and always was a poseur, and his pose is that of an intellectual bully. The relevance of his comment is about Scalia, and what it says about the United States that he is a justice of the Supreme Court.

  3. Professor,

    Your post and the back and forth comments that follow it are thought-provoking and well worth the read. However, I take a different view on Scalia’s comments.

    My concern is not with the merits of the affirmative action case before the court (although I do have a strong opinion on it) but rather with the way Scalia has been treated by many academicians. Though the notion of academic freedom is not directly applicable here, certainly the principle behind it – of free expression and exchange of ideas – is.

    I believe the gnashing of teeth over Scalia’s reference to the so-called “Mismatch Theory” is an egregious over reaction. And, to me, it is troubling on several levels.

    First, the theory itself is a legitimate subject to discuss, debate, and study. While the view of Matthew M. Chingos is certainly worth considering, it is in no way dispositive of the question. The truth or falsity of this theory is, to many, still quite ripe for discussion and more research. The notion that Scalia should be vilified for merely addressing the subject is misguided nonsense.

    Second, the vitriol leveled at Scalia for daring to express this theory – as presented to the Court in a brief – appears to be a not too subtle attempt to stifle debate. The academic world should rail against the outpouring of ad hominem attacks leveled at Scalia. Not only are ad hominem attacks intellectually anemic, but more disturbingly, they promote (by design) a chilling effect on honest and open debate that academics should soundly condemn.

    Third, there was nothing inappropriate about Scalia reviewing this “Mismatch theory” argument. Whether Scalia believed the theory or not is unimportant, his questions to Gregory Garre, U Texas counsel were fair game. Oftentimes, Justices will intentionally ask provocative questions to force thought and flesh out an answer. Questions – for this purpose – are not required to be politically correct or sugar coated.

    Finally, we have no knowledge – until Scalia writes his opinion – about the basis for whatever opinion he presents. It might be the “Mismatch Theory” or it might not be. At this junction, there is scant evidence to support your claim that Scalia is an “advocate” of the “Mismatch Theory.” Questions asked by Justices during oral arguments are not always indicative of how a Justice thinks or will vote. Regardless, it’s a bit premature to start hurling invectives. In this regard, I thought that including the snarky blog by Borowitz at the end of your piece added nothing to your otherwise well presented position.

    • The notion that a few academic bloggers, whose posts are generally seen by just hundreds, could somehow endanger the free expression rights of a sitting U.S. Supreme Court justice is, to put it mildly, a bit of a stretch. Since you make the analogy with academic freedom, I might also point out that a Supreme Court justice is appointed for life with almost no chance of removal; indeed, none has in fact ever been removed in the court’s entire history, which is far greater protection than that enjoyed by any tenured faculty member. (Justice Samuel Chase, a signer of the Declaration of Independence, was impeached in 1804, but he was acquitted in trial by the Senate.) Therefore, Scalia enjoys not only the right to free expression but far greater security to exercise that right than almost any other citizen. Moreover, a person’s right to free expression does not mean that others cede their right to disagree with, criticize, ridicule, satirize (a la Borowitz) or vigorously condemn what has been said. The First Amendment was not designed to protect public servants from criticism or even from verbal abuse, but instead to protect members of the public from retaliation for offering such criticism or abuse. In short, I see no free speech issue here at all. You and everyone else is free to agree with Scalia or with his critics and to decide for yourself how much Borowitz’s snark adds to or detracts from the discussion.

      • Thank you for your reply. While many of your individual sentences are indeed true, I fear that, on the whole, you have grossly mischaracterized my points. Indeed, your opening sentence commits the classic “straw man” fallacy. Likewise, the body of your reply rebuts points that I simply did not make.

        I am certainly not worried about academic freedom for a Supreme Court Justice as you posit. Rather, I was concerned about the greater question that the free expression of ideas should be welcomed. And, of course, those ideas should be subject to criticism. But the notion that just mentioning a controversial idea is somehow wrong was my only point. To me, that notion seems to run counter to the essence of academic freedom. (Note: I only mentioned academic freedom –not because it applies here – but because its underlying principle does. And, I smell hypocrisy.)

        Moreover, my concern is not that the “Mismatch Theory” itself shouldn’t be forcefully criticized (which you did well); rather, my concern is that Scalia shouldn’t be vilified for merely taking notice of what was submitted in a brief and questioning counsel about it. To me, that is part of his job.

        Nowhere in my post did I imply that others cede their right to criticize or condemn what has been said. The merits (or lack thereof) of the “Mismatch Theory” need plenty of airing. What I thought inappropriate was conflating criticism of the “Mismatch Theory” with the intelligence and integrity of the speaker. Pejoratives like he is a bully, he is a bigot, he is an idiot really have no place in an honest debate on this issue. You, of course, did not cross this line. But others did, and I exercise my right to bring it up and criticize them for it.

        I am quite familiar with the First Amendment and I made no reference whatsoever to anyone’s free speech being abridged.

        With regard to snark, I suppose its use is a matter of taste. I just find that well constructed arguments are preferable. Oftentimes, snark is used because the author/speaker just doesn’t have a good argument.

        I appreciate what you do on this blog and I thank you for the discussion.

      • Well, then I guess I don’t see your point. As I see it — in the most neutral terms I can muster — Scalia made these comments, others disagreed, some quite stridently using strong language. All that is well within the realm of free expression. Some found Scalia’s remarks beyond the pale of acceptability, others (I assume you are one) find some of the responses to him to be beyond that pale. Both sides are wrong. What is “acceptable” or even “advisable” is a matter of personal opinion. Sometimes that opinion is widely shared, other times not. Calling someone a bully, a bigot, or an idiot (for the record, I used none of these terms, as you acknowledge) may be counter-productive if one wants to win a reasoned debate, but people do it all the time and that’s their right. And, as you say, it’s also your right to criticize them for it. Political discourse and reasoned debate are not the same thing, as news reports prove every day. You may bemoan that as much or more than I, but that’s reality.

  4. Edit to my 2nd reply: 2nd paragraph 1st Sentence should read: I am certainly not worried about the “free expression rights” for a Supreme Court Justice as you posit. (In place of “academic freedom”)

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