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Silly Season at the University of Texas Over Scalia Comment

As everyone now knows, during the December 9 oral argument in Fisher v. University of Texas, Justice Scalia asked counsel for UT a question predicated on the “mismatch” theory cited in one of the briefs, which some partisan observers quickly (but erroneously) branded a “racist” comment. Once the transcript of the oral argument was released, most intelligent, fair-minded people have conceded that Scalia’s remark, viewed in context, was an appropriate query based on the various arguments presented. The incident is well-documented here, here, and here.

My post focuses on the biased reporting of Alcalde, the ostensibly neutral magazine published by UT’s alumni organization, commonly referred to as Texas Exes. By way of disclosure, I am a graduate of UT’s law school and a “Life Member” of the Texas Exes. Further disclosure: I have been a frequent critic of Texas Exes’ reporting on the ongoing Fisher v. UT litigation (among other topics), believing that Alcalde’s editorial position is tilted in favor of UT. My foil in these periodic clashes has been Alcalde’s editor, Tim Taliaferro, a 32-year-old Huffington Post veteran who also serves as Texas Exes’ Vice President of Communications & Digital Strategy. Taliaferro consistently maintains that Texas Exes “takes no position” on the Fisher case or the use of race in admissions, but I regard that disclaimer as a self-serving fig leaf to conceal Alcalde’s role as a PR shill and cheerleader for UT (from which it receives considerable financial support).

Late in the day (5:04 p.m.) on December 9, the day Fisher v. UT was heard, I unexpectedly received an e-mail from Taliaferro, who attended the argument. (I did not.) He attached a link to the Alcalde article he had written on the oral arguments, and stated that “I am flying back from DC and the Fisher oral arguments and wanted to get your reaction to my reporting on the case. I would welcome any thoughts or suggestions you have. I’m trying to be extra careful to ensure that we are being faithful to both parties. I know you have followed this closely, and you are a lawyer, so I’d welcome any feedback.” I took a quick look at the article, and noted that its treatment of the parties and issues was an improvement over some of Alcalde’s prior coverage, but was disturbed by Taliaferro’s characterization of Justice Scalia’s questioning. In his article, Taliaferro wrote that “In a bizarre moment, Justice Antonin Scalia appeared to question whether it was even advisable that African-American students be admitted to the University of Texas at all.” Taliaferro purported to quote Scalia, acknowledged that Scalia was referring to the “mismatch theory,” reported that the comment had elicited charges of “racism,” and stated that “Texas Exes, which publishes the Alcalde, has also condemned Scalia’s comment.”

I had not followed news reports of the hearing, but based on my familiarity with the issues, I assumed that whatever Scalia had said was based on the “mismatch” theory originally advanced by UCLA’s Richard Sander and noted legal journalist Stuart Taylor, Jr. in their book entitled Mismatch, which was cited in some amicus briefs, notably the one filed (in their personal capacities) by U.S. Commission on Civil Rights members Gail Heriot and Peter Kirsanow. I briefly responded to Taliaferro at 5:53 p.m.: “Better than previous stories. I’m sure Scalia was referring to Black students admitted preferentially—the ‘mismatch’ phenomenon.” Taliaferro perfunctorily replied with “Thanks.” I was slightly curious why Taliaferro had reached out to me, but for the time being did not think about it further.

Early the next morning, December 10, as I was scanning the prior day’s news, I saw various press reports of the Fisher hearing, confirming my assumption about the context for Scalia’s comment, i.e., that it was made in reference to the mismatch theory, not regarding African-American students in general. At 8:06 a.m., I forwarded a relevant link to Taliaferro, with the message “The [Texas Tribune] story makes it clear that Scalia was referring to mismatch, not African-American students in general.” No response. Not until later in the morning did I get a chance to find out what Texas Exes had said in response to the Scalia comment (I do not have a Twitter account). To my chagrin, I discovered that at 2:12 p.m. on December 9, Texas Exes had issued a tweet stating “Although we take no position on the Fisher case [recall the obligatory disclaimer], Scalia’s comments today were racist and offensive. #BlackTexasEx.” (Emphasis added.) I was very perturbed that the alumni organization in which I am a Life Member accused a sitting Supreme Court Justice of making a racist comment during oral argument, particularly since the context made it abundantly clear that the remark was not racist. I immediately sent an e-mail (at 9:58 a.m.) to Leslie Cedar, the Executive Director of Texas Exes: “Did Texas Exes actually condemn Justice Scalia’s comment during oral argument as ‘racist and offensive’? Who authorized that on behalf of Texas Exes? I demand that the organization retract the statement and issue an apology. I am appalled.” I received no response (and have still received no response) from Cedar.

Numerous news reports, blog posts, and op-eds regarding Scalia’s comment (now including citations to the actual Fisher hearing transcript) were now coming online, providing overwhelming clarification that Scalia had not made a racist comment. At 10:04 a.m. I forwarded one of these posts to Cedar and Taliaferro, with the message: “When will the apology be issued?” No response. I then forwarded Cedar and Taliaferro a fairly balanced Washington Post story on the Scalia comment, entitled “Where Justice Scalia got the idea that African Americans might be better off at ‘slower-track’ universities,” with the statement “Your tweet was inappropriate and unjustified. You need to retract it.” Taliaferro finally responded:

“Absolutely not, Mark. It was not the theory that he was discussing. This was his quote:

‘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. One of the 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. I’m just not impressed by the fact the University of Texas may have fewer [blacks]. Maybe it ought to have fewer.’” (Emphasis in original.)

Feeling that Taliaferro had completely lost the point (since he acknowledged in his Alcalde article that Scalia was referring to the “mismatch” theory), I responded: “Justice Scalia was referring to the mismatch theory mentioned in some of the briefs. Whether or not you agree with it, it is not ‘racist and offensive.’ Richard Sander and Stuart Taylor have written a book on it. Admit it: You overreacted. Do the right thing. Retract and apologize. You have embarrassed the organization and all its members.”

Taliaferro (who, recall, had initiated this exchange by soliciting my reaction to his article) became defensive and dogmatic. He replied: “‘Maybe the university ought to have fewer blacks’ is so plainly and undeniably racist, Mark. That has nothing to do with a theory. He isn’t aping that line from a brief. That is his statement.” I strongly disagreed. I quickly responded to Cedar and Taliaferro: “Your ideological blinders are giving you tunnel vision. The mismatch theory holds that students perform best in a learning environment where their aptitudes and abilities are comparable to fellow students—a cohort of similarly qualified students—so that the level of instruction is directed at them. Racial preferences defeat the educational aspirations of the students ‘aided’ by affirmative action by creating a mismatch. Scalia was saying that Black students who are not academically qualified to attend UT shouldn’t be attending; it actually harms them. This is not racist. No responsible media observer interpreted Scalia’s comment as you do. I demand that you retract the statement and apologize. This is a matter of great import to many UT alumni. You have defamed a Justice on the U.S. Supreme Court.”

Taliaferro replied: “Mark, We denounced a racist comment as racist. That is not the same thing as defaming a Supreme Court justice.” (Emphasis added.) At this point, Taliaferro was entrenched in his position, and it should have been apparent that he was not going to issue a retraction, even as the developing media consensus coalesced around the position that Scalia had merely asked a question concerning “mismatch,” and had not made a random racial comment. In fact, an L.A. Times op-ed entitled “No, Scalia’s comment about ‘less-advanced’ schools wasn’t racist” reviewed the incident and went so far as to characterize Taliaferro’s position—that Scalia was being racist—as “silly.” Still hopeful that I could convince Texas Exes to change its mind, I forwarded the L.A. Times piece to Cedar and Taliaferro, with this message: “I’ve asked you nicely several times. Here’s an L.A. Times op-ed calling your position silly…. I urge you to reconsider.”

No response. I ended this lengthy exchange with a final message to Cedar (with a copy to the President of the Texas Exes Board of Directors, the Hon. Antonio Garza): “Leslie and Ambassador Garza, I must conclude that you condone this irresponsible behavior. Calling a Supreme Court Justice racist (when the L.A. Times says this position is ‘silly’) is serious business.” Still no response.

The Texas Exes tweet was denounced by Texas Supreme Court Justice Jeff Brown, who tweeted in response: “You speak for too many Texas Exes to behave this irresponsibly. You’ve unjustly smeared a U.S. Supreme Court justice.” We expect such polemical chicanery by ideological organs such as Mother Jones (a hyperlink to which, tellingly, Taliaferro imbedded in his Alcalde story). But when supposedly nonpartisan alumni organizations become undisguised liberal propagandists, it is time for alumni and members to push back. Texas Exes indefensibly besmirched a Supreme Court jurist, and misled Texas Exes members (and Alcalde readers) in the process. The editor of Alcalde and the leadership of the organization refused numerous opportunities to correct the error, and blindly ignored all contrary evidence. Making an error is unfortunate but understandable. Stubbornly defending an error exhibits hubris and arrogance, and represents a serious lapse of journalistic ethics. Cedar’s and Taliaferro’s behavior is outrageous and inexcusable. An apology—at a minimum—is overdue.

Editor’s Note Update: In the Will Wonders Ever Cease Department, Texas Exes on December 16 issued an apology. Read it here.

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