Justice Thomas has developed at length the same argument to which Justice Scalia got himself into trouble by alluding. Here’s Thomas in Grutter v. Bollinger (2003):
The Law School is not looking for those students who, despite a lower LSAT score or undergraduate grade point average, will succeed in the study of law. The Law School seeks only a facade–it is sufficient that the class looks right, even if it does not perform right.
The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions. See T. Sowell, Race and Culture 176—177 (1994) (“Even if most minority students are able to meet the normal standards at the ‘average’ range of colleges and universities, the systematic mismatching of minority students begun at the top can mean that such students are generally overmatched throughout all levels of higher education”). Indeed, to cover the tracks of the aestheticists, this cruel farce of racial discrimination must continue–in selection for the Michigan Law Review, see University of Michigan Law School Student Handbook 2002—2003, pp. 39—40 (noting the presence of a “diversity plan” for admission to the review), and in hiring at law firms and for judicial clerkships–until the “beneficiaries” are no longer tolerated. While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less “elite” law school for which they were better prepared.
For what it’s worth, I don’t think the Court needs to reach a definitive answer to the question of how much of this mismatch racial preferences cause or how destructive it is in order to decide the case. It can and should rule simply on the ground that the Civil Rights Act of 1964 says that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” You’d have to fold, spindle, and mutilate that language not to see that it settles the case. Unfortunately that’s what the Supreme Court did back in 1978. It should revisit that mistake. And while a reference to the mismatch theory might be in order as a way of rebutting other justices’ claims, the Court should mostly leave the social-science argument to the social scientists.