Justice Scalia Suggests that 'Slow-Track' Colleges May Be Better for Black People

Scalia was sitting right next to Clarence Thomas, the sole African-American justice, when he made these startling comments.

Antonin Scalia, one of the most conservative justices on the Supreme Court, attracts headlines for his legendary, incendiary dissents. He gives talks about gay rights that push the envelope of polite speech. And he is an animated questioner of lawyers during oral arguments, eliciting more laughter from the audience than any of his eight fellow justices. 


But this week, Justice Scalia turned heads with some particularly troublesome comments about race. First, during a hearing about redistricting on Tuesday, he concocted a strange hypothetical scenario. Diving into a dispute about whether a commission drawing a state electoral map should be seen as illegitimate if only two of its five members had been motivated by partisan considerations, Justice Scalia offered this (springing from nowhere?) thought experiment: “Do you think if four of the justices of this Court voted a certain way in a case because they were racist, the opinion would still be valid because, after all, five of us weren't?"

An incredulous Justice Stephen Breyer promptly gave the back of his hand to his colleague’s statement. “I don’t know any court like that,” he said. He could have added that racist motives are usually well hidden, and, anyway, that there is no tribunal authorized to pronounce a Supreme Court opinion “invalid.”

But sometimes presumptions about race have a way of spilling out into the open, and on Wednesday, during the oral argument in an affirmative action case called Fisher v. University of Texas, Justice Scalia asked the university’s lawyer why boosting the number of black students at the state’s flagship campus is necessarily a good idea.

'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.'         

- Lawyer Greg Garre before SCOTUS

Greg Garre, the lawyer, was beginning to warn the justices of the consequences of killing off affirmative action. “Experience tells us,” he said, that minority enrollments will fall off precipitously if racial preferences are abandoned. Where voters have cancelled affirmative action, “diversity plummeted, especially among African-Americans ... at selective institutions in California, Berkeley, ... UCLA, ... and the University of Michigan.”

Here Justice Scalia piped up, in a strident voice: “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 then pointed to one of the amicus briefs in the case, presumably the one submitted by Richard Sander proposing the controversial “mismatch” theory, and misstated one of its contentions: “Most of the black scientists in this country,” Scalia said, “don’t come from schools like the University of Texas.”

Summing up, Justice Scalia suggested that classes at elite colleges are “too fast for them.” The University of Texas should rethink its desire to increase the presence of black students on its campus above percentiles in the low single digits. “Maybe,” he said, “it ought to have fewer.”

In a remarkable bout of composure, Garre calmly corrected Justice Scalia’s misconceptions:

“This Court heard and rejected that argument, with respect, Justice Scalia, in the Grutter case, a case that our opponents have not asked this Court to overrule. If you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they fare better. And, frankly, 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. I think what experience shows, at Texas, California, and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America.”

Those were Garre's last words before leaving the lectern. Scalia had nothing else to say.  

--

Image: UNITED STATES - OCTOBER 10: Kenya Battle, 17, a junior at Dunbar High School in Northwest, stands outside of the Supreme Court as the justices heard oral arguments in Fisher v. University of Texas case, which could limit affirmative action practices that colleges and universities use in admissions departments. (Photo By Tom Williams/CQ Roll Call)

Steven V. Mazie is Professor of Political Studies at Bard High School Early College-Manhattan and Supreme Court correspondent for The Economist. He holds an A.B. in Government from Harvard College and a Ph.D. in Political Science from the University of Michigan. He is author, most recently, of American Justice 2015: The Dramatic Tenth Term of the Roberts Court.

Image credit: shutterstock.com

Follow Steven Mazie on Twitter: @stevenmazie

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Researchers hope the technology will further our understanding of the brain, but lawmakers may not be ready for the ethical challenges.

Still from John Stephenson's 1999 rendition of Animal Farm.
Surprising Science
  • Researchers at the Yale School of Medicine successfully restored some functions to pig brains that had been dead for hours.
  • They hope the technology will advance our understanding of the brain, potentially developing new treatments for debilitating diseases and disorders.
  • The research raises many ethical questions and puts to the test our current understanding of death.

The image of an undead brain coming back to live again is the stuff of science fiction. Not just any science fiction, specifically B-grade sci fi. What instantly springs to mind is the black-and-white horrors of films like Fiend Without a Face. Bad acting. Plastic monstrosities. Visible strings. And a spinal cord that, for some reason, is also a tentacle?

But like any good science fiction, it's only a matter of time before some manner of it seeps into our reality. This week's Nature published the findings of researchers who managed to restore function to pigs' brains that were clinically dead. At least, what we once thought of as dead.

What's dead may never die, it seems

The researchers did not hail from House Greyjoy — "What is dead may never die" — but came largely from the Yale School of Medicine. They connected 32 pig brains to a system called BrainEx. BrainEx is an artificial perfusion system — that is, a system that takes over the functions normally regulated by the organ. The pigs had been killed four hours earlier at a U.S. Department of Agriculture slaughterhouse; their brains completely removed from the skulls.

BrainEx pumped an experiment solution into the brain that essentially mimic blood flow. It brought oxygen and nutrients to the tissues, giving brain cells the resources to begin many normal functions. The cells began consuming and metabolizing sugars. The brains' immune systems kicked in. Neuron samples could carry an electrical signal. Some brain cells even responded to drugs.

The researchers have managed to keep some brains alive for up to 36 hours, and currently do not know if BrainEx can have sustained the brains longer. "It is conceivable we are just preventing the inevitable, and the brain won't be able to recover," said Nenad Sestan, Yale neuroscientist and the lead researcher.

As a control, other brains received either a fake solution or no solution at all. None revived brain activity and deteriorated as normal.

The researchers hope the technology can enhance our ability to study the brain and its cellular functions. One of the main avenues of such studies would be brain disorders and diseases. This could point the way to developing new of treatments for the likes of brain injuries, Alzheimer's, Huntington's, and neurodegenerative conditions.

"This is an extraordinary and very promising breakthrough for neuroscience. It immediately offers a much better model for studying the human brain, which is extraordinarily important, given the vast amount of human suffering from diseases of the mind [and] brain," Nita Farahany, the bioethicists at the Duke University School of Law who wrote the study's commentary, told National Geographic.

An ethical gray matter

Before anyone gets an Island of Dr. Moreau vibe, it's worth noting that the brains did not approach neural activity anywhere near consciousness.

The BrainEx solution contained chemicals that prevented neurons from firing. To be extra cautious, the researchers also monitored the brains for any such activity and were prepared to administer an anesthetic should they have seen signs of consciousness.

Even so, the research signals a massive debate to come regarding medical ethics and our definition of death.

Most countries define death, clinically speaking, as the irreversible loss of brain or circulatory function. This definition was already at odds with some folk- and value-centric understandings, but where do we go if it becomes possible to reverse clinical death with artificial perfusion?

"This is wild," Jonathan Moreno, a bioethicist at the University of Pennsylvania, told the New York Times. "If ever there was an issue that merited big public deliberation on the ethics of science and medicine, this is one."

One possible consequence involves organ donations. Some European countries require emergency responders to use a process that preserves organs when they cannot resuscitate a person. They continue to pump blood throughout the body, but use a "thoracic aortic occlusion balloon" to prevent that blood from reaching the brain.

The system is already controversial because it raises concerns about what caused the patient's death. But what happens when brain death becomes readily reversible? Stuart Younger, a bioethicist at Case Western Reserve University, told Nature that if BrainEx were to become widely available, it could shrink the pool of eligible donors.

"There's a potential conflict here between the interests of potential donors — who might not even be donors — and people who are waiting for organs," he said.

It will be a while before such experiments go anywhere near human subjects. A more immediate ethical question relates to how such experiments harm animal subjects.

Ethical review boards evaluate research protocols and can reject any that causes undue pain, suffering, or distress. Since dead animals feel no pain, suffer no trauma, they are typically approved as subjects. But how do such boards make a judgement regarding the suffering of a "cellularly active" brain? The distress of a partially alive brain?

The dilemma is unprecedented.

Setting new boundaries

Another science fiction story that comes to mind when discussing this story is, of course, Frankenstein. As Farahany told National Geographic: "It is definitely has [sic] a good science-fiction element to it, and it is restoring cellular function where we previously thought impossible. But to have Frankenstein, you need some degree of consciousness, some 'there' there. [The researchers] did not recover any form of consciousness in this study, and it is still unclear if we ever could. But we are one step closer to that possibility."

She's right. The researchers undertook their research for the betterment of humanity, and we may one day reap some unimaginable medical benefits from it. The ethical questions, however, remain as unsettling as the stories they remind us of.

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