The case of Abigail Fisher is once again back before the United States Supreme Court. Ms. Fisher sued the University of Texas when she was first denied admission. She is attacking the affirmative action program at UT. UT allowed the top ten percent of each graduating class at the time. Ms. Fisher argues that that top ten percent allows a sufficient amount of minorities. UT responds that no, they cannot achieve adequate diversity with just the top ten percent. So, they use additional factors to allow more minorities.

Ms. Fisher graduated from Louisiana State University in 2012, but she is still pursuing her case. It has come back to the US Supreme Court. The high court first heard her case in 2012, but it simply remanded for additional information.

At the oral hearing yesterday, Justice Scalia seemed to be arguing for “separate but equal” schools. He said many minorities do not do well at the flagship campus of UT. They do better at less competitive schools in which minorities are not pressed to go faster than they are able. He said some minorities are being pushed “ahead in classes that are too fast for them” at schools like UT. He said there are those persons who believe it does not benefit African-Americans to get into the UT flagship campus where they do not do well.

Okay. . . . ¬†That does sound like Plessy v. Ferguson, 162 U.S. 537 (1896). Plessy famously held that separate coaches on a railway did not deprive black Americans of any property rights. After all, said the court, being placed in the black coach did not deprive the black man of any property, since he was not entitled to the reputation of a white man. The plaintiff’s lawyer argued that such laws requiring separate facilities would lead to houses painted a certain color for whites, a certain color for blacks and other colors for other nationalities. Responded the court, well, such laws would have to “reasonably” serve the public good.

Justice Scalia seems to believe separate schools for minorities would reasonably serve the public good.