While on the Supreme Court, Justice Antonin Scalia, who died this month at 79, worked to make society less just for black Americans, railing against affirmative action and seeking to undermine the Voting Rights Act. His admirers would attribute this not to rank bigotry, but to his textualist legal philosophy. According to some of the dead justice’s former law students, though, a younger Scalia also went out of his way to undermine young legal scholars, simply because they were black.
After an undergraduate stint at Columbia, Arnim Johnson attended the elite University of Chicago Law School in the late 1970s, during Scalia’s tenure as an instructor there. In the spring trimester of his 1L year, Johnson took administrative law with Scalia, before temporarily moving to Washington, D.C. for a summer job with the government. Upon receiving his final grades for the term, Johnson was shocked to discover he’d failed the course with a flat F—practically unheard of at a top-tier school like Chicago, or any law school for that matter.
Johnson explained what happened next, as he remembered it, in a widely shared Facebook post:
Scalia was a law professor of mine, and was on the faculty of the U of Chicago the entire three years I attended. The law school is one of the smallest in the country, housed in one building and relatively intimate as graduate schools go. While I was there, Scalia was outed as a blatant racist to the extent that the Black American Law Students Association (BALSA) chapter at the law school brought it to the attention of acting Dean Norval Morris in several meetings. Scalia flunked every black student who took his classes that year. Nobody flunks courses in elite law schools. It’s unheard of. He flunked one brother so badly, it skewered his grade average, and he became the first, last, and only student in the history of the school to repeat first year. That man went on to become a repected [sic] military judge. Ultimately, no action was taken because the source of the information was private, confidential and privileged, and Scalia’s racist attitude and actions toward black students could be plausibly denied, but just barely. He stuck with his story that he had graded blindly, but it came out that Scalia had done the same thing, when he was on the faculty at the U of Virginia. However, Scalia was an academic star actively politicking for a federal judgeship with national political connections, as well as being quite personable. The school administration passed on taking any action, since the actual facts regarding his intent could not be adduced in a tribunal. However, what he thought of black people was indisputable, and believe me it was nothing nice. Being a swarthy, son of poor Sicilian immmigrants, [sic] and intent on becoming an all-American white man, he was consumed with putting as much space between himself and Negroes as possible, and becoming an honorary member of the WASP elite.
I reached Johnson over the phone at his home in Chicago, where he confirmed this account and explained what steps he took next: “I was talking on the phone, called another friend of mine who had gone to UVA. He had graduated and moved to Chicago, we’d met the summer before I went to law school, and was five years older than me.” Johnson recalls complaining about his fail grade to this friend, lamenting, “this guy Scalia.....” when the friend cut him off:
“‘Antonin Scalia? He flunked everyone at UVA, too.’”
Johnson’s recollection seems about as vivid as anything could be after 40 years, though he admits that many of the people who could corroborate the mass-flunking are dead or infirm.
He also admits that he’d been wrong about at least one classmate whom he’d remembered receiving an F, but who he now says passed the class. I spoke with one such former Scalia student, Ben Streeter, now an attorney with the Federal Election Commission, who told me that although he passed Scalia’s class, he noticed preferential treatment for a group of conservative students, who at that time were entirely white:
The final exam in the admin law class was the only exam I’d only taken at U of C that had a section of short-answer questions...What immediately struck me was that [the] answers were something that had never been covered in class, but it struck me that this was the kind of thing that he would talk to students about if students came by to visit him.
These students who got face time with Scalia outside of class all had something in common: “In those days, the only students who came by to visit him were in the Federalist Society group,” a conservative cadre that promoted Scalia’s originalist interpretation of the Constitution. “There was not a single black member of the Federalist Society in my three years at the U of C,” Streeter added over email.
Phillip Hampton, now senior counsel at Haynes and Boone in Washington, DC, studied law at Chicago a year beneath Arnim Johnson, and was president of the Arnim black law student group, BALSA. Although his recollection differs slightly, Hampton corroborates much of Arnim’s claims: “It seemed very strange that almost every black student’s lowest grade was in Scalia’s class,” he told me via phone. “I don’t think any black person got more than a C- from Scalia...black students received Ds and Cs, [and Scalia] failed Arnim [Johnson]” along with another black, very high achieving student.
As president of the law school’s BALSA chapter, Hampton remembers challenging the school after students realized they were being treated differently because of their race—a claim the school first opposed on the basis of blind exam testing. In short, that grades couldn’t be handed out in a racist manner because the examiner couldn’t known any given student’s race. Arnim Johnson disputed this claim, saying that Scalia (and other professors) had full access to the university’s print shop, through which exams were filtered during the testing process, and that it would’ve been easy to discern which blue books belonged to which students. But Hampton also recalls an ominous remark by Scalia: “He made a statement once that he could tell—because he was such a linguist—that he could usually tell papers that were written by African Americans.” The school finally admitted that professors “had access to the [exam] blue book numbers and names,” but only so that they could award extra credit. “I said that’s bullshit,” Hampton remembered.
No one I spoke to recalled any white students experiencing similar trouble at Chicago with Scalia or any other professor. But the class sizes were so small in those days that the contrasts were easy to detect, recalled Hampton: There were very few African Americans in my class, so my first friends were white guys, and I studied with them.” Hampton said that he “wrote the entire outline for contracts, and I had the lowest grade in [Scalia’s] class, got a C-, one of my lowest grades ever.” As for his classmates? “Pretty sure the white guys got in the mid 70s, and one got an 80, which was an A.”
The University of Chicago had no comment on Scalia’s grading practices or the allegations made against him.
Update: A university spokesperson provided the following statement:
We are saddened to hear of these allegations. Because of the length of time that has passed, and the fact that some of the individuals are either deceased or no longer work at the Law School, we are unable to comment on whether the allegations are true.
The University of Chicago Law School embraces diversity as an integral part of our educational mission, and works to ensure that every student is treated fairly both inside and outside the classroom. We would take extremely seriously any such allegation today, and our long-standing policy of blind-grading is intended to minimize the possibility of that kind of misconduct.