Justice Scalia earned the ire of many on the liberal side—and, of course, the majority of the media—for a question he posed on Thursday during a Supreme Court hearing on the famous case of Fisher v. University of Texas. (See a CNN report on what happened here.)

Of course, the media went into a tizzy. Questions like, “Will he apologize?” “Will there be consequences?” etc.

While some of the more legal analysts on these networks made a faint attempt at mentioning that he was referring to a brief that was submitted to the court by opponents of affirmative action, these sotto voce attempts were brushed aside by the anchors as not really relevant, and the “bashing party” continues.

Not once was the context of the whole case mentioned; the context that was clearly the basis for these comments.

So let me present the facts:

  • There are many, many white students who do not meet the academic criteria of the University of Texas, and guess what: they are unceremoniously rejected and are sent to lower level colleges, 2-years program, or maybe no college at all. That is life.
  • There are many African American students that meet the academic criteria of UT and are accepted—and I am sure are doing as well as any other student.
  • The ENTIRE case before the court was focused on one small subgroup: these African American students that do NOT meet the academic criteria of UT BUT are accepted to UT nevertheless, due to affirmative action.

This last group was the only focus of the case and the only focus of Scalia’s comments.

Putting this context front and center makes his comments very reasonable, justified as a question for sure, and if you ask me, probably correct in the vast majority of cases.

Gut feeling and general experience tells me that if you push someone beyond their capabilities and put them in a competitive environment where they feel inadequate, under pressure to perform, and are constantly struggling to meet the standards that will, in most cases, not bear good results.

I am in favor of affirmative action ONLY if it is focused on those who are under performing due to socio economic issues (being poor and thus having no adequate learning facilities and environment is a typical example) as opposed to race (although, unfortunately, there is some correlation between the two) AND ONLY if it starts MUCH earlier in life.

The whole misfortune of affirmative action throughout all these years is that it should have been directed at poor students—not black students. To work appropriately, affirmative action should identify learning capabilities in children who lack the proper learning environment due to their socio economic standing at an EARLY age, say 8, 9, and 10 years old, and THEN give them serious support.

Not when they are 18 and already well behind the curve.