The Latest Allegations Against Antonin Scalia — Are They Accurate?

Notwithstanding his reputation as a law-and-order conservative, the late Justice Antonin Scalia was a great defender of the rights of criminal defendants — “a pinup for the criminal defense bar,” as he famously quipped. One of the constitutional provisions he reinvigorated was the Sixth Amendment’s Confrontation Clause, which declares that “the accused shall enjoy the right… to be confronted with the witnesses against him.”

Alas, now that he has passed on, Justice Scalia cannot confront the new witnesses against him who continue to emerge. So those of us who remain should subject their claims to the strictest scrutiny. (See, for example, former Scalia clerk Ed Whelan’s vigorous rebuttal to the anti-Scalia piece by another former Scalia clerk, Bruce Hay.)

The latest controversy concerns claims that Antonin Scalia — about four decades ago, back when he was a law professor at the University of Chicago — treated African-American students unfairly. From Sam Biddle of Gawker:

While on the Supreme Court, Justice Antonin Scalia, who died this month at 79, worked to make society less just for black Americans, railing against affirmative action and seeking to undermine the Voting Rights Act. His admirers would attribute this not to rank bigotry, but to his textualist legal philosophy. According to some of the dead justice’s former law students, though, a younger Scalia also went out of his way to undermine young legal scholars, simply because they were black.

Biddle then passes along allegations from three former Scalia students — Philip Hampton, Arnim Johnson, and Ben Streeter — who claim that then-Professor Scalia either flunked or gave poor grades to them and their fellow African-American students. There are some divergences in their accounts, Biddle acknowledges, and one might find it hard to believe that people can remember what happened to them some four decades ago. But the general gist is consistent: Scalia mistreated them on account of their race.

My immediate thought: how could Scalia have done this given blind grading, the practice of professors grading exams without knowing the identities of the students? Here’s how the students responded:

Arnim Johnson disputed this claim, saying that Scalia (and other professors) had full access to the university’s print shop, through which exams were filtered during the testing process, and that it would’ve been easy to discern which blue books belonged to which students. But Hampton also recalls an ominous remark by Scalia: “He made a statement once that he could tell—because he was such a linguist — that he could usually tell papers that were written by African Americans.” The school finally admitted that professors “had access to the [exam] blue book numbers and names,” but only so that they could award extra credit. “I said that’s bulls**t,” Hampton remembered.

Not necessarily. One pretty standard practice is for the law school registrar’s office to compile the blind exam grades and then take direction from the professor about how to adjust those grades up or down for factors like class participation, usually by a limited amount (e.g., a third of a grade — turning a B into a B-plus, say). It would look rather fishy, to say the least, if a professor directed the registrar to massively downgrade the marks of several students, especially if those students all happened to be of the same race.

This is admittedly speculative on my part — but also on the part of Hampton and Johnson — because at this point in time, we can’t conduct an internal investigation into how grading worked at Chicago Law back then. As the law school told Gawker, in a statement that struck me as both sensible and sensitive, “We are saddened to hear of these allegations. Because of the length of time that has passed, and the fact that some of the individuals are either deceased or no longer work at the Law School, we are unable to comment on whether the allegations are true.”

Here’s another oddity. From Sam Biddle of Gawker:

[Former Scalia student] Ben Streeter, now an attorney with the Federal Election Commission, who told me that although he passed Scalia’s class, he noticed preferential treatment for a group of conservative students, who at that time were entirely white:

“The final exam in the admin law class was the only exam I’d only taken at U of C that had a section of short-answer questions…What immediately struck me was that [the] answers were something that had never been covered in class, but it struck me that this was the kind of thing that he would talk to students about if students came by to visit him.”

These students who got face time with Scalia outside of class all had something in common: “In those days, the only students who came by to visit him were in the Federalist Society group,” a conservative cadre that promoted Scalia’s originalist interpretation of the Constitution. “There was not a single black member of the Federalist Society in my three years at the U of C,” Streeter added over email.

Here’s the oddity: Streeter graduated in 1979, and the Federalist Society didn’t launch until 1982, after his graduation. I raised this issue with Streeter by email, and here’s how he responded:

Even though the national Federalist Society was not formed until 1982 as you state, a chapter existed at the University of Chicago Law school when I matriculated there in 1976. I wasn’t present for the founding, so I don’t know the particular creation myths for the UC’s chapter. The chapter was certainly a focal point for conservative students and faculty like Scalia and Richard Epstein. Michael McConnell, a UC classmate of mine who also graduated in the same class as me from James Madison College at Michigan State University, was a member of that chapter. I do recall that the chapter used the name Federalist Society. My understanding of the founding of the national organization is that it was primarily a top-down process, with national conservative leaders taking the steps to initiate and promote the new organization. After that, it should have been easy for the pre-existing UC chapter to simply blend itself into the new national structure.

Did some proto-Federalist Society exist at the University of Chicago prior to 1982? Yes, but not as early as 1979. Here is what Lee Liberman Otis — one of the Federalist Society’s founders at the U of C, who is now the national organization’s senior vice president and faculty division director — explained to me:

There was no Federalist Society at Chicago or anywhere else when I arrived at Chicago in the fall of 1980. Together with David McIntosh and a few others, I started a student group at Chicago called the Federalist Society after I arrived. We held our first event in the spring or fall of 1981. At the same time a group of students at Yale started a similar freestanding group also called The Federalist Society at Yale. They came up with the name and we decided to use it too. There was no preexisting group by that name at Chicago or elsewhere. There was a preexisting student group at Harvard called the Harvard Society for Law and Public Policy. There was also a group at Stanford that got started around the same year, 1981, called the Stanford Foundation for Law & Economic Policy that may have had a predecessor by a slightly different name, but not The Federalist Society.

The national Federalist Society was not formed until 1982, at a student symposium held at Yale and cosponsored by the Yale Federalist Society, the Chicago Federalist Society, the Harvard Society for Law & Public Policy, and the Stanford Foundation for Law and Economic Policy. Far from being top down, its formation was the result of groups of law students from around the country who wanted to start a group similar to those cosponsoring the symposium.

Does Streeter’s apparent error regarding the Federalist Society render his other allegations incorrect? Not necessarily — although it doesn’t enhance his credibility either, and it does highlight the difficulty of piecing together events from 40 years ago.

But let’s assume, for the sake of argument, that African-American students did unusually poorly in Scalia’s classes (setting aside whether other professors might have been similarly harsh graders, and maybe Scalia just sticks out because of his conservative views and subsequent fame). One can think of explanations that don’t require the late justice to be racist.

Were he still alive, Justice Scalia might raise the “mismatch theory,” as he (controversially and perhaps clumsily) did during oral argument in the Fisher affirmative action case. Here’a concise explanation of mismatch theory from Conor Friedersdorf of The Atlantic:

Its proponents argue that non-academic preferences in [university] admissions ill-serve some intended beneficiaries, who end up admitted to schools for which they are relatively unprepared, and struggling, rather than thriving at different schools where they would be at least as well prepared as their classmates.

But those remarks by Justice Scalia generated some criticism — my colleague Elie Mystal dubbed them “patently offensive and racist” — so let’s look for a less incendiary explanation for why African-American students might have underperformed in Scalia classes. (Or, if you want to explore this “mismatch” argument further, see Ed Whelan.)

As anyone who has attended law school can tell you, some (I’d say many) professors give better grades to students who agree with them. It isn’t necessarily a conscious attempt to reward these students for sharing the professor’s worldview. My theory is that the types of people who become law professors are so passionate about their ideas that they often can’t even fathom how someone who disagrees with them might still be a smart person.

And we also know that African-American students at Chicago Law during the Scalia period were not a conservative group. As Ben Streeter told Gawker — set aside the non-existence of Fed Soc at the time, and treat “Federalist Society” as synonymous with “conservative or libertarian” — “There was not a single black member of the Federalist Society in my three years at the U of C.”

It seems quite possible, then, that African-American students might have earned below-average grades in Professor Scalia’s courses simply because of their below-average level of agreement with his views as a professor. This would certainly be problematic — and to the extent that it still happens at law schools around the country, it remains problematic — but it’s a far cry from labeling Justice Scalia, whom I personally regard as a great justice and a gracious man, with the epithet of “racist.”

If this all sounds a bit speculative… well, exactly. Speculation is inevitable when trying to analyze allegations regarding conduct from 40 years ago. Guaranteeing fairness to the accused is precisely why we have due process, statutes of limitation, and the Confrontation Clause — a constitutional provision that Justice Scalia did more to strengthen than any other member of the Court.

Disclosure: I occasionally speak at events sponsored by the Federalist Society, for which the Society covers my travel expenses and pays its standard speaker honorarium.

Black Former Law Students of Antonin Scalia Recall Unfair Treatment at the University of Chicago [Gawker]
The Parade of Posthumous Defamers of Scalia Continues [Bench Memos / National Review Online]
Antonin Scalia Is So Racist He Probably Still Thinks Pluto Is A Planet [ATL Redline]

Earlier: Justice Scalia And Me: A Love Story