Misrule of Law

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).

Late in the day (5:04 p.m.) on December 9, the day Fisher v. UT was heard, I unexpectedly received an e-mail from Taliaferro, who attended the argument. (I did not.) He attached a link to the Alcalde article he had written on the oral arguments, and stated that “I am flying back from DC and the Fisher oral arguments and wanted to get your reaction to my reporting on the case. I would welcome any thoughts or suggestions you have. I’m trying to be extra careful to ensure that we are being faithful to both parties. I know you have followed this closely, and you are a lawyer, so I’d welcome any feedback.” I took a quick look at the article, and noted that its treatment of the parties and issues was an improvement over some of Alcalde’s prior coverage, but was disturbed by Taliaferro’s characterization of Justice Scalia’s questioning. In his article, Taliaferro wrote that “In a bizarre moment, Justice Antonin Scalia appeared to question whether it was even advisable that African-American students be admitted to the University of Texas at all.” Taliaferro purported to quote Scalia, acknowledged that Scalia was referring to the “mismatch theory,” reported that the comment had elicited charges of “racism,” and stated that “Texas Exes, which publishes the Alcalde, has also condemned Scalia’s comment.”

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