We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. ...We imagine that the white race, at least, would not acquiesce in this assumption.
The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. ...
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
-- Justice Henry Billings Brown, written majority opinion Plessy vs. Ferguson, May 18, 1896
Or perhaps Scalia's comments amount to a more verbose version of this:
A racist is one who despises someone because of his color, and an Alabama segregationist is one who conscientiously believes that it is in the best interest of Negro and white to have a separate education and social order.
-- George Wallace, U.S. News and World Report, 1964
What Scalia said may carry the veneer of data-enriched, modern thinking about race, education and opportunity. It may sound, to some ears, like the hard, cold facts, blended with genuine concern and then wrapped in the imprimatur and prudence that Scalia's lifetime Supreme Court appointment implies.
But there is almost nothing about what Scalia said that should be palatable, that is remotely new or indisputably accurate.
[Court divided over University of Texas case]
In fact, what Scalia voiced was just a very old set of ideas that have been used from almost the very beginning of this democracy to explain, justify or outright deny all manner of injustice and inequality. It's a special kind of circular logic. This is the logic that once rested on the idea that black slaves weren't fully human or American. So why then should they enjoy any guaranteed rights at all? If black Americans are inherently inferior, aren't they essentially being done a favor when their movements, education, place of residence and employment and partner of choice are socially or legally proscribed? And more to the point today, it isn't all of the aforementioned history and decisions that continue to reproduce socioeconomic inequality largely along racial lines; it's inherent inability or the absence of effort and drive.
Or so these arguments often go.
[Where Justice Scalia got the idea that African Americans might be better off at ‘slower-track’ universities]
Scalia's notions -- and they are simply notions -- about widespread and inherent black inferiority are part of a sprawling set of American ideas, policies and yes, even jurisprudence, around race, opportunity and ability. It's a body of thinking and policy-making that has been used at points to justify uneven opportunity or access, then explain away any group culpability for its logical results. And it's a way of thinking that ignores the very real fact that the reason integration became and remains such a contentious and still-incomplete goal is that, strategically, this remains the most assured route to quality schools, housing, health care and every other resource that helps to dictate opportunity.
It is a well-established fact that black and Latino children attend the nation's worst public schools. They are more likely to be taught by the least-experienced teachers, to learn in classrooms in the most ramshackle facilities, and they are more likely to come from lower-income families where conditions often make learning a bigger challenge. What students of color do seem to get more of is harsh discipline, including suspensions and arrests. That costs these same students valuable instruction time too.
These are all facts backed up by data and rigorous study available
here,
here,
here and
here.
https://www.washingtonpost.com/news/the-fix/wp/2015/12/10/justice-scalias-strange-but-all-too-familiar-theory-on-the-victims-of-affirmative-action/
