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WASHINGTON (CNN) — Supreme Court Justice Antonin Scalia raised eyebrows on Wednesday with a comment he made during the court's hearing of an affirmative action case, in which he seemed to suggest some African-Americans belong in lesser colleges.
Scalia was questioning the attorney for the University of Texas, which is defending its use of race as a factor in admissions in the case before the court.
"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 less — a slower-track school where they do well," Scalia said, according to the transcript. "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."
The attorney, Gregory G. Garre, tried to interject, but Scalia continued.
"They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them," Scalia said. "I'm just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe some — you know, when you take more, the number of blacks, really competent blacks, admitted to lesser schools, turns out to be less."
Garre said the court had already rejected that argument in the past.
"I don't think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they're going to inferior schools," Garre told Scalia.
The case, Fisher v. Texas, was heard for the second time on Wednesday, and all signs pointed again to a deeply divided court. The first time the case was heard, the justices made a narrow ruling that sent the case back down to the lower courts.
The arguments came as colleges across the country are confronting racial tensions and unrest over perceived unequal treatment of students.
Carrie Severino, chief counsel for the conservative Judicial Crisis Network and a former clerk to Justice Clarence Thomas, defended Scalia, saying he wasn't implying black students are inferior.
"What Justice Scalia is referring to is the 'mismatch theory' popularized by Stuart Taylor and Richard Sander in their book," she said. "The idea is that if a student is admitted to a school they are not academically prepared for then they will not perform up to their own potential. This is a theory — contested of course — but I don't want people to get the idea that it means that all black students are not as smart as white students, or even that they are not as well prepared across the board."
Scalia was apparently referencing a brief filed by Sander.
"Students with an interest in science who are admitted to a very competitive school via a large preference tend to drop out of the sciences at a much higher rate than do otherwise similar students who attend somewhat less competitive programs," the brief said. "Competition mismatch appears to be a major factor in the low rate at which African-American students become scientists, despite high levels of interest in the sciences."
CNN's Ariane de Vogue contributed to this report.
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