The tempest in a teapot over Justice Scalia’s questions during arguments in Fisher II concerning the mismatch theory were predictable, and uninteresting. Before the transcripts had even been released, the internet blew up as pundits pursuing agendas took the out-of-context pull quotes entirely out of context. (By the way, this is yet another reason the Justices will never allow live recordings–before the case would even be submitted, a clip would be up YouTube faster than Steve Harvey can announce the next Ms. Universe).
But even after the initial outrage–when the transcript was released and the context of Scalia’s question was made clear–people were still outraged. The meme continued that Scalia’s opposition to affirmative action must be borne out of racism, and could not have anything to do with constitutional law. Notwithstanding the fact that one of the elements of the strict scrutiny inquiry is whether the government policy actually serves the compelling governmental interest–mismatch could be viewed as casting doubt on that proposition.
This outrage is par for the course with the growing tide of campus/elite censorship of ideas that fall outside the social-justice-safe-space: any opposition to an idea we like based on constitutional norms can only be due to the racist heteronormative patriarchy. Or something like that. A colleague suggested that the unrest on campuses could even affect the outcome of Fisher II–that to avoid further uprisings, a certain Justice may not invalidate the UT program. I replied that fortunately, most colleges are out of session by June 28, 2016, so any unrest would have to wait for classes to resume in the fall.
For that reason, I was ecstatic to see that President Obama has once again stood up for the values of free speech on college campuses, specifically referring to affirmative action, during an interview on NPR.
OBAMA: As I’ve said before, I do think that there have been times on college campuses where I get concerned that the unwillingness to hear other points of view can be as unhealthy on the left as on the right, and that, you know …
INSKEEP: Meaning listen to people that you might initially think are bigoted or …
OBAMA: Yes, there have been times where you start seeing on college campuses students protesting somebody like the director of the IMF or Condi Rice speaking on a campus because they don’t like what they stand for. Well, feel free to disagree with somebody, but don’t try to just shut them up.
If somebody doesn’t believe in affirmative action, they may disagree — you may disagree with them. I disagree with them, but have an argument with them. It is possible for somebody not to be racist and want a just society but believe that that is something that is inconsistent with the Constitution. And you should engage.
So my concern is not whether there is campus activism. I think that’s a good thing. But let kids ask questions and let universities respond. What I don’t want is a situation in which particular points of view that are presented respectfully and reasonably are shut down, and we have seen that sometimes happen.
I want to post this quote on every bulletin board in every classroom in every law school in the country: “It is possible for somebody not to be racist and want a just society but believe that that is something that is inconsistent with the Constitution.”
Thank you President Obama. This is exactly right.
The exchange begins around 29:50.