01:49 - Source: CNN
Scalia: Some black students don't belong at elite colleges

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Dorothy Brown: The mismatch theory, which suggests blacks at elite institutions are "punching above their weight class," is flawed

Brown: If the mismatch theory is relevant for black students, it should be relevant for white students as well

Editor’s Note: Dorothy A. Brown is a professor of law at Emory University’s School of Law and author of “Critical Race Theory: Cases, Materials, and Problems.” The opinions expressed in this commentary are hers.

(CNN) —  

Today the audio recording of the recent Fisher v. University of Texas oral arguments is available for all to hear. The case, challenging the University of Texas at Austin’s affirmative action policy, made headlines last week after Supreme Court Justice Antonin Scalia made controversial comments during a hearing.

Scalia is reported to have said on Wednesday: “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 less – a slower-track school where they do well.” He was referring to the “mismatch theory.” That theory couldn’t be more wrong.

Dorothy A. Brown
Courtesy of Dorothy Brown
Dorothy A. Brown

The mismatch theory was described in 2004 by UCLA law professor Richard Sander in the Stanford Law Review. He made his original argument with respect to law schools and the law school admission test, but in a brief he co-authored and filed in 2011 in the Fisher case he extended the argument with equal force to standardized tests such as the SAT.

Affirmative action under pressure at Supreme Court

Some proponents of the mismatch theory argue that blacks who are admitted to college with lower entering credentials such as the SAT and grade point averages are not as qualified as their higher scoring white peers. Proponents further argue that this results in black students with “weaker credentials” competing with their “stronger credentialed” white peers and getting lower grades.

If blacks instead just went to different (lower prestige) schools where their SAT/GPA scores were comparable with their white peers, goes the thinking, they would get better grades. Put crassly, blacks at selective institutions are punching above their weight class and are “mismatched.” To be sure, this is a controversial theory, but let us stay with the point Scalia raises for a moment.

If the proponents are right, I have a few questions. Why do so many black students want to go to selective schools? Why isn’t the “mismatch” logic equally true for white students with weaker credentials?

Enter Abigail Fisher, a plaintiff in the case before the high court. Fisher’s high school grades made her unqualified for automatic admission under Texas’ Top Ten Percent Plan, which in the year she applied filled 81% of the seats available for Texas residents who graduated in the top 10% of their high school class. Instead she was considered under a separate review process, but given the stiff competition she faced from her better credentialed peers, even that process required a minimum GPA of 3.5. Ms. Fisher had a 3.1 GPA.

Quoting the associate director of admissions in the Fifth Circuit opinion: “Based on [her] high school class rank and test scores,’ Fisher could not ‘have gained admission through the fall review process.’ “

Why don’t proponents of the mismatch theory think that Fisher is better off going to the less selective school (Louisiana State University) that she actually graduated from in the spring of 2012 rather than the University of Texas? Does Fisher not know what’s best for her? Which brings us back to the viewpoint Scalia raised on what’s best for black students.

Why didn’t we hear from a representative for black students at Wednesday’s oral argument? We heard a lot of talk about black students but not from their representatives. The black students filed a motion against the State of Texas requesting the right to become part of the Fisher case.

It was denied in 2008 by District Court Judge Sam Sparks, who reasoned that: (i) the University of Texas was deemed to be able to adequately represent its interests; and (ii) excluding their voices was in “the best interest of an efficient resolution of [the] case.”

Proponents of the mismatch theory who appear to have captured Scalia’s attention are wrong about what’s in the best interests of black students.

According to Oren Sellstrom, who wrote a brief criticizing the “mismatch theory,” research shows that “minority students who benefit from affirmative action get higher grades at the institutions they attend, leave school at lower rates than others … and that attendance at a selective institution is associated with higher earnings and higher college completion rates.”

Further, Richard Kahlenberg, a senior fellow at the Century Foundation, which works on diversity in public schools from a socioeconomic perspective, says 54% of corporate leaders and 42% of government leaders come from a dozen selective universities that include Yale, Harvard, Princeton and Stanford. Scalia, however, helped show the benefits of attending highly selective colleges. His question hints at an elitist perception likely held by many that other schools are actually “less-advanced.”

Proponents of the mismatch theory, however, don’t think that they are wrong, so if they think the mismatch theory is relevant for black students, then it has to be relevant for white students such as Fisher. Instead of Fisher suing the University of Texas, she should be thanking the university for rejecting her. It’s what the proponents of the mismatch theory should want.

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