Of course, his insinuations in Fisher are insulting, but perhaps not for the reasons you might think. On the surface, the comments do strike as repugnant. Granted. However, what is most alarming is that while his statements may bear some level of statistical truth, they are absolutely worthless outside of historical context. You cannot put people who have run barefoot in dirt fields their entire lives on the same track as those who have been sponsored by Nike in world-class facilities since birth and expect that to be an even race or competition. That the former are even in the race is an accomplishment of its own.
This is what his commentary fails to consider or to illuminate. The socioeconomic conditions that lead to disparities in education from grade school forward are the missing context that make Scalia’s comments unfair and his insinuations unjust. None of this considers the greatest point of irony in the discussion, which is that the petitioner, Abigail Fisher, actually lacked the academic credentials to be admitted to the school.
Why Scalia Is Wrong on Fisher v. University of Texas - The Root