I understand what Jones is driving at, but this is the wrong frame for the discussion:
The case itself, however, is tortured: Plaintiff Abigail Fisher, a white student who says UT-Austin denied her admission in 2008 because of affirmative action, was actually denied because she straight-up wasn’t qualified.
I don’t think it’s reasonable to assume that Fisher was “unqualified” to attend UT Austin. Fisher had grades and test scores in a range in which some people are accepted to UT, and has gotten a degree from LSU. Maybe UT Austin is so much more rigorous than LSU that Fisher couldn’t have successfully obtained a degree from the former, but good Randy Newman one-liners aside I doubt this is true.
This might seem like a semantic issue, but mischaracterizing the issue this way plays into the hands of opponents of affirmative action. Implicit in Scalia’s questioning and willful distortion of Richard Sander’s research is an assumption that the selective and high-demand schools where affirmative action is most relevant are distinguishing between “qualified” and “unqualified” applicants. But this isn’t true. Schools like UT get many more applications from qualified applicants than it has slots. UT is choosing among qualified applicants, not drawing a line between “qualified” and “unqualified” applicants. This makes affirmative action particularly appropriate. There may be atypical circumstances in which an affirmative action program results in a genuinely unqualified person being admitted to a university or given a job, but this is a badly designed program, not a constitutional violation, and there’s no reason to think it’s true of UT in any case.
The author of the most intelligent and substantive critique of affirmative action in the U.S. Reports is, ironically, an excellent illustration of this distinction. Would Clarence Thomas have been accepted to Yale School based on strictly race-neutral admissions criteria? Probably not. Would have he had been nominated to the Supreme Court is George H.W. Bush did not take race into account? Of course not. Was he “unqualified” for either position? Plainly not — he successfully completed his law degree at Yale and has been a more-than-able Associate Justice of the Supreme Court of the United States whatever one thinks of the substance of his views. And Supreme Court nominations are a case where the argument that presidents are choosing The One Most Qualified Candidate rather than from among a large pool of fully qualified candidates is particularly specious (and, when it comes to arguments such as “Princeton and Yale Law’s Circuit Court judge Sam Alito is qualified and Princeton and Yale Law’s Circuit Court judge Sonia Sotomayor is not,” flatly racist.)
It’s entirely fair game to criticize Fisher’s sense of entitlement, but the issue is not whether Fisher was “qualified” to attend UT. The question is whether Fisher’s rights were violated when UT choose other qualified applicants instead of her. The answer is that they were not.