Justice Scalia, Affirmative Action, and Why Shame Is Not An Option

Jose Vilson Education, Jose

“That’s going to be a hard school to get into, but we’ll give it a shot.”

By junior year, I was already upset at some of the shade I received at Xavier High School. Even with my 90+% GPA and excellent ranking, I still felt like my experience was undermined by people who didn’t want me to do well. My English 11 honors teacher, a longstanding priest and faculty member in the community, continued to find ways to ignore me in book discussions. Fellow students, save my real friends, whispered that I was easily one of the whiter students in a student body that was 80% white already. I assimilated with the culture because, if I didn’t, my whole academic standing felt like it was in danger.

I ate the derision because I didn’t know what else to do. A part of me knew what I represented as the only person of color in many of my classes. That’s a burden too hefty to bear for an uninformed 16-year-old.

When I applied to Georgetown University and Syracuse University, my only two real applications, I felt like the above statement from my counselor was suspect at best. I didn’t see how my plight wasn’t uncommon. The resistance towards affirmative action policies was in full force by my high school years, and in front of that picket line was none other than Justice Antonin Scalia, a Xavier HS alumni and valedictorian almost 50 years prior. In his time as a professor, lawyer, and justice, he took the mantle of conservatism, embracing the Constitution as a document which spoke directly to the intention of the original forefathers. In his view, it seems, the Constitution was rarely in need of amendment and, if anything, needed its adjustments scaled back to sharpen the vision of the Philadelphia Convention centuries ago. Intent didn’t matter. Close readings of the text did.

Racial minorities in the United States were special groups, and nothing in the Constitution said special groups were all that special.

The issue I find is how people obfuscate affirmative action with special privileges. The idea of affirmative action isn’t that people of color or white women – by and large the biggest beneficiaries of affirmative action policies – deserve an unearned spot. If anything, people of color generally have higher qualifications than their white peers when admitted to colleges across the board. Affirmative action policies assures that gatekeepers have to look at all qualified candidates and give them a shot where appropriate, especially if they’ve been overlooked historically.

This means that my high GPA and solid recommendations from a highly regarded high school should have been enough for my peers and teachers to see me as capable. Come to think of it, my matriculation into Xavier should have been enough as well. Justice Scalia as a valedictorian, as an Italian, as a child of a professor and an elementary school teacher, on the other hand, didn’t have classmates in high school wondering how he got there. I was doing what I was doing for those who didn’t get to be part of the honors classes via eye test.

When I went to my counselor a few months later with my acceptance letter to Syracuse University, I was elated. This tall Irish priest of a man smiled and shook my hand in earnest. By the time I got my rejection letter from Georgetown University, he shrugged and told me, “You’re in good company, sir,” listing all the other kids who didn’t get in with me, all of the others white. My trepidation about his biases were relieved. In 2003, as a junior in college, a group of us drove down to Washington D.C. to protest this Supreme Court decision, and Scalia’s calamitous views on the policies that allowed me to attend Syracuse U. In 2015, Justice Scalia argued:

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 said. “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.”

The problem isn’t just that Scalia believed people of color, specifically Black people, came from “lesser” schools, as if these institutions produce “lesser” scientists. It’s that he also argued:

“To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

These two cannot coexist. People rarely consider the influence of legacy and entitlement of one group of Americans, but rebuke equity when it comes to every other form of American. Whenever America proposes that every American is equal, but that some Americans are more equal than others, we have what’s called a contradiction. According to Scalia’s interpretation, we shouldn’t look at the intention behind a text, but the text itself, but such a text would hold me as 3/5ths of a person, only 60% qualified to live in America, where the other 40% trickles upwards to those accepted by mainstream society.

Doing the math, that means my 90+ GPA would count only as 60s, an assumption too many people made when I walked around the SU campus, too.

For Xavier High School, I perhaps represented progress in both manner and thinking, but I can’t help but think if Scalia had become headmaster of the all-boys Catholic school in Chelsea and not Supreme Court Justice, and how his thinking made itself so pervasive in this country. Shortly after his passing yesterday, I found myself in a similar space to when my pernicious English teacher had passed away while I was there. Surely, I feel sorry for his family, friends, and loved ones, because that’s what grace requires.

But I only felt two forms of shame: the first is that it took death by hunting trip to do away with his ultra-conservative impediment to social progress, including abortion rights and gay marriage. The second is that, as alum of the same high school, I never got to tell him my story, a synecdoche of so many stories across the country he so vehemently dismissed.

photo c/o