A US supreme court justice’s suggestion this week that black students may benefit from attending “lesser schools” isn’t supported by academic research of affirmative action policies, experts said on Thursday.

The comments on Wednesday from justice Antonin Scalia – that black students may perform better at a “slower-track school” – came during a hearing in the years-long challenge brought by Abigail Fisher, a white student who claims she was deprived of a place at the University of Texas because of race. Scalia also suggested that universities are adversely affected when minority students are admitted to unsuitable elite institutions.

“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,” he said.

“One of the [legal] 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.”

But experts said Scalia’s comments are couched in the so-called “mismatch theory”, a controversial concept that has been “thoroughly discredited”, said Richard Lempert, law professor at the University of Michigan.

“Study after study tells us that whether one looks at graduation rates or future earnings, minorities admitted to more selective schools with an assist from affirmative action do at least as well as and more often better than they could have been expected to do had they gone to less selective institutions,” Lempert told the Guardian.

Indeed, Lempert and his colleagues conducted a meticulous study that examined nearly three decades of data on how affirmative action polices had worked at UM. The study found that minority students who entered the university through the affirmative action policy earned as much over their careers as white students from Michigan.



With a vast pool of research, along with several briefs submitted to the court, Lempert said Scalia’s perceptions were “far off the mark” of what expert organizations and researchers have found.

Scalia’s analysis is “dead wrong”, Lempert said.

The mismatch theory, which suggests minority students are inhibited by affirmative action, is pushed by academics like UCLA law professor Richard Sander. In a brief submitted to the supreme court, Sander said students who receive “large preferences actually learn less in the classroom than they would if they attended a school where the student’s level of academic preparation was closer to the median student”.

The idea is that a student in the bottom of their class may get demoralized and either avoid or drop out of complicated fields, said Anthony Chen, associate professor of sociology and political science at Northwestern University.

Sander asserted in his brief that students who receive preference into a law school tend to perform worse on bar exams than “otherwise comparable students who attend a less elite law school with peers who have … similar levels of academic preparation”.

But if Scalia’s comments were rooted in the mismatch theory, then “it bears mentioning that much of the research literature does not support such a belief”, Chen said.

“Most researchers believe there is little credible evidence to support the claim that affirmative action worsens academic outcomes for its beneficiaries because it leads them to be ‘mismatched’ with their academic environments,” Chen told the Guardian.

Lempert agreed.

“The mismatch argument lives largely because it allows people opposed to affirmative action to feel their opposition is in the best interest of minorities,” Lempert said, “even though the minorities themselves and most social scientists know that abolishing affirmative action will make overcoming still existing legacies of slavery and ongoing discrimination that much more difficult.”

Affirmative action programs date to the 1960s when they were first used to reduce racial segregation, and since 2003, the court has ruled that race may only be used as a factor if it can be shown to be essential to creating a diverse student body. Among the beneficiaries are Scalia’s fellow justice, Sonia Sotomayor, who has said that her admission through affirmative action to Princeton, where she excelled, opened doors to the Latina, who grew up in a Bronx public housing project.

But the remarks from Scalia and chief justice John Roberts suggest they believe students who don’t meet certain qualifications to attend a university simply can’t perform as well as students who meet the threshold.

That claim ignores the “complexity” of what students bring to higher education that allows them to be successful, said Patricia Marin, assistant professor at Michigan State University’s education department.

“Ultimately, institutions aren’t served by admitting students who cannot do well,” Marin told the Guardian. “So admissions officers need all the tools they can to admit a successful class of students – and a holistic review that includes race/ethnicity as one among many factors is essential for them to admit a class that allows the institution to achieve its educational mission.”

The benefits of diversity

Marin said a question from chief justice John Roberts about “what the benefits of diversity are” in a physics class misses the mark.

She pointed to a study she previously conducted where the question of diversity in math and hard science classes was asked: an undergraduate student told her that diversity “was important for her to see that students of all races could excel in math, and students of all races could be bad at math”, Marin said.

“She believed that she learned a lot and changed some of her own thinking and preconceived notions about groups,” she said. “Addressing stereotypes and how students see the world is an essential part of their education.”

Elite universities have also cautioned the court on the challenges they face in admissions without the consideration of race. The University of Michigan said in a brief filed to the court that its “nearly decade-long experiment in race-neutral admissions … is a cautionary tale that underscores the compelling need for selective universities to be able to consider race as one of many background factors about applicants”.

Tyrell Collier, former president of the University of Michigan’s Black Student Union, said the scope of affirmative action covers underrepresented communities that have directly benefited from those policies across the US.

“Furthermore, there’s a broad misconception that affirmative action programs across the country are admitting unqualified students to these prestigious public universities,” Collier, 23, said. “This couldn’t be the further from the truth. Under affirmative action, most colleges and universities use selection systems that look at equally qualified, or comparable, candidates when making admissions decisions.”

Scalia’s suggestion that black Americans are intellectually disadvantaged and incapable of succeeding at elite institutions “undermines the intellectual achievements of black college students across the country”, Collier told the Guardian.

“It’s willful ignorance,” he said.

And the benefits of maintaining a diverse student population are immense, experts and students said. F Michael Higginbotham, law professor at the University of Baltimore, cited two points offered by justice Sandra Day O’Connor, in her opinion in the seminal 2003 case, Grutter v Bollinger: diverse students “bring different perspectives to the classroom experience (all classrooms including history of chemistry) and that improves the learning experience” and “diversity better prepares students to work and live in a diverse society”.

“Justice Scalia’s comment is in conflict with the first benefit and ignores the second benefit,” Higginbotham said.

Marin said the outcome of Fischer is critical “not only for higher education, but for the future of this country”.

“It’s about allowing our institutions to use the tools needed to be able to provide the best possible education for all students,” she said. “After all, these are the students who are our future leaders. Why wouldn’t we want to allow higher education to be able to provide what they know is needed to offer the best education they can provide?”