As everyone now knows, during the December 9 oral argument in Fisher v. University of Texas, Justice Scalia asked counsel for UT a question predicated on the "mismatch" theory cited in one of the briefs, which some partisan observers quickly (but erroneously) branded a "racist" comment. Once the transcript of the oral argument was released, most intelligent, fair-minded people have conceded that Scalia's remark, viewed in context, was an appropriate query based on the various arguments presented. The incident is well-documented here, here, and here.
My post focuses on the biased reporting of Alcalde, the ostensibly neutral magazine published by UT's alumni organization, commonly referred to as Texas Exes. By way of disclosure, I am a graduate of UT's law school and a "Life Member" of the Texas Exes. Further disclosure: I have been a frequent critic of Texas Exes' reporting on the ongoing Fisher v. UT litigation (among other topics), believing that Alcalde's editorial position is tilted in favor of UT. My foil in these periodic clashes has been Alcalde's editor, Tim Taliaferro, a 32-year-old Huffington Post veteran who also serves as Texas Exes' Vice President of Communications & Digital Strategy. Taliaferro consistently maintains that Texas Exes "takes no position" on the Fisher case or the use of race in admissions, but I regard that disclaimer as a self-serving fig leaf to conceal Alcalde's role as a PR shill and cheerleader for UT (from which it receives considerable financial support).
I had not followed news reports of the hearing, but based on my familiarity with the issues, I assumed that whatever Scalia had said was based on the "mismatch" theory originally advanced by UCLA's Richard Sander and noted legal journalist Stuart Taylor, Jr. in their book entitled Mismatch, which was cited in some amicus briefs, notably the one filed (in their personal capacities) by U.S. Commission on Civil Rights members Gail Heriot and Peter Kirsanow. I briefly responded to Taliaferro at 5:53 p.m.: "Better than previous stories. I'm sure Scalia was referring to Black students admitted preferentially—the 'mismatch' phenomenon." Taliaferro perfunctorily replied with "Thanks." I was slightly curious why Taliaferro had reached out to me, but for the time being did not think about it further.
Early the next morning, December 10, as I was scanning the prior day's news, I saw various press reports of the Fisher hearing, confirming my assumption about the context for Scalia's comment, i.e., that it was made in reference to the mismatch theory, not regarding African-American students in general. At 8:06 a.m., I forwarded a relevant link to Taliaferro, with the message "The [Texas Tribune] story makes it clear that Scalia was referring to mismatch, not African-American students in general." No response. Not until later in the morning did I get a chance to find out what Texas Exes had said in response to the Scalia comment (I do not have a Twitter account). To my chagrin, I discovered that at 2:12 p.m. on December 9, Texas Exes had issued a tweet stating "Although we take no position on the Fisher case [recall the obligatory disclaimer], Scalia's comments today were racist and offensive. #BlackTexasEx." (Emphasis added.) I was very perturbed that the alumni organization in which I am a Life Member accused a sitting Supreme Court Justice of making a racist comment during oral argument, particularly since the context made it abundantly clear that the remark was not racist. I immediately sent an e-mail (at 9:58 a.m.) to Leslie Cedar, the Executive Director of Texas Exes: "Did Texas Exes actually condemn Justice Scalia's comment during oral argument as 'racist and offensive'? Who authorized that on behalf of Texas Exes? I demand that the organization retract the statement and issue an apology. I am appalled." I received no response (and have still received no response) from Cedar.
No response. I ended this lengthy exchange with a final message to Cedar (with a copy to the President of the Texas Exes Board of Directors, the Hon. Antonio Garza): "Leslie and Ambassador Garza, I must conclude that you condone this irresponsible behavior. Calling a Supreme Court Justice racist (when the L.A. Times says this position is 'silly') is serious business." Still no response.
The Texas Exes tweet was denounced by Texas Supreme Court Justice Jeff Brown, who tweeted in response: "You speak for too many Texas Exes to behave this irresponsibly. You've unjustly smeared a U.S. Supreme Court justice." We expect such polemical chicanery by ideological organs such as Mother Jones (a hyperlink to which, tellingly, Taliaferro imbedded in his Alcalde story). But when supposedly nonpartisan alumni organizations become undisguised liberal propagandists, it is time for alumni and members to push back. Texas Exes indefensibly besmirched a Supreme Court jurist, and misled Texas Exes members (and Alcalde readers) in the process. The editor of Alcalde and the leadership of the organization refused numerous opportunities to correct the error, and blindly ignored all contrary evidence. Making an error is unfortunate but understandable. Stubbornly defending an error exhibits hubris and arrogance, and represents a serious lapse of journalistic ethics. Cedar's and Taliaferro's behavior is outrageous and inexcusable. An apology—at a minimum—is overdue.
Editor's Note Update: In the Will Wonders Ever Cease Department, Texas Exes on December 16 issued an apology. Read it here.