Affirmative Action Never Stood a Chance Against Clarence Thomas – The American Spectator

This June, the Supreme Court struck down affirmative action, ruling it invalid under the Equal Protection Clause of the 14th Amendment. For Justice Clarence Thomas, the ruling fulfilled his decades-old legal vision of affirmative action’s incompatibility with the Constitution. He even read his concurring opinion from the bench, a rare occurrence.

Thomas begins his line of argumentation at “the wake of the Civil War,” the national eye fixed on the future of the Union and freedmen. After the “second founding” of the 13th and 14th amendments, the Constitution became “colorblind,” per Justice John Marshall Harlan’s dissenting opinion in Plessy v. Ferguson. Still, the court’s “commitment to that equality principle has ebbed and flowed over time”; progress was made with Brown v. Board of Education and undone in Grutter v. Bollinger, which permitted universities to discriminate based on race for diversity’s (vague) sake.

This time, the court applied “genuine strict scrutiny to the race-conscious admissions policies” of Harvard University and the University of North Carolina at Chapel Hill. Thomas nonetheless wrote a separate concurrence “to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race — including so-called affirmative action — are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination.” 

The 14th Amendment’s Original Purpose

Thomas first discusses the intention of the 14th Amendment: to make “all citizens of the United States, regardless of skin color … equal before the law.” The 13th Amendment had not accomplished this alone: Black Codes persisted. So Congress passed the 1866 Civil Rights Act (CRA), declaring all persons born in the United States equal citizens.

But Congress realized the uncertain legal status of the CRA, as its supporters viewed the enforcement of equality as a state power. The 14th Amendment was born from this dilemma, “establishing the full constitutional right of all persons to equality before the law and [prohibiting] legal distinction based on race or color.” The amendment’s “race-neutral” text offered “protection for all equal citizens of the Nation without regard to race.” (RELATED: Created Equal: Clarence Thomas in His Own Words)

In the continued discriminatory government policies, proponents of the 1875 Civil Rights Act made their case “on colorblind terms.” For instance, Republican Sen. Charles Sumner asserted, “This is plain oppression, which you … would feel keenly were it directed against your child.” Proponents of equality opposed discrimination in all its forms. Even early SCOTUS interpretations of the 14th Amendment were colorblind — not limited to blacks. Slaughter-House Cases refers to protections for “the Mexican or Chinese race within our territory.” Hence, the law ensures equal treatment for Asian Americans and immunity from discriminatory legislation and classifications. 

Thomas sharply attacks an “‘antisubordination’ view of the 14th Amendment: that the Amendment forbids only laws that hurt, but not help, blacks. Such a theory lacks any basis in the original meaning of the 14th Amendment.” Statutes cited in Justice Sonia Sotomayor’s dissent and by respondents are “fully consistent with the colorblind view.” The 1866 Freedmen’s Bureau Act (originally passed in 1865 and then reinforced in 1866), for instance, applied to freedmen particularly, as not all blacks in the United States were former slaves. (READ MORE: Supreme Court Ends the Last Vestige of ‘Systemic Racism’ in America)

The Freedmen’s Bureau itself also served white refugees, and its advocates “disclaimed … antisubordination,” striving to ensure equal rights before the law for all. Thomas delves into other cited statutes that “may well have survived strict scrutiny,” addressing special problems which applied to specific blacks. The government can “plainly remedy a race-based injury that it has inflicted,” so long as the remedies are meant to further colorblindness, not racial consciousness or the singling out of a group of citizens for “special treatment.” Conversely, Thomas refers to the Jim Crow era itself as “race-conscious.”

Racial Diversity Quotas Are a Disastrous Tool for Promoting a Diverse Society

Thomas concurs that the interests cited by Harvard and UNC for affirmative action practices, such as “enhancing appreciation, respect, and empathy,” are too vague. Grutter’s standard of “the educational benefits of a diverse student body” was also too vague. And neither Harvard nor UNC, “two of the foremost research institutions in the world,” can explain the link between racial diversity and educational benefits beyond … fluff.

Harvard cannot prove that racial diversity improves, say, test scores. Moreover, “two white students, one from rural Appalachia and one from a wealthy San Francisco suburb, may well have more diverse outlooks” than one black and one white wealthy Manhanatitte. “UNC fares no better,” citing social goals of living together in a diverse society and failing to explain why diversity could not be promoted “by admitting individuals with diverse perspectives and backgrounds, rather than varying skin pigmentation.” (READ MORE: The Left’s Big Pitch: Embrace a Worse Life in the Name of Equality)

Even if the benefits of diverse “pigmentation” could be proven, they would have to outweigh the “tremendous harm” of racial classifications, which the court has historically found damaging and demeaning. “Universities’ self-proclaimed righteousness does not afford them license to discriminate on the basis of race,” and the court owes no deference to an “alleged discriminator while assessing claims on racial discrimination.” 

Thomas argues that judicial skepticism toward discriminating institutions also has a strong historical basis. Harvard’s early “holistic” admissions policy in the 1920s was developed to exclude Jews. Today, Harvard, UNC, and the dissenters argue for discrimination that may negatively affect those same groups, like Jews outside the white elite. But our country was founded — twice — on the equality of man.

The Effects of Discriminatory Admissions on Students’ Psyches

Discrimination, no matter the justification, is pernicious. Who are we to decide that Asians (or Jews, Poles, and the Irish) deserve to be burdened in a zero-sum game as a disfavored based on past discrimination that they, too, experienced? Not to mention that universities continue to segregate students on campus, with minority-only graduation ceremonies and the like. The respondents’ arguments are incongruous, asking, according to Thomas, that the country “punish today’s youth for the sins of the past.”

There can be no doubt that applicants to these schools are keenly aware of discriminating, race-conscious admissions. When I was applying to college — ultimately selecting an offer from Yale University — my friends knew of an Asian-American student who changed her last name to avoid the repercussions of affirmative action. Others hoped that being “women in STEM” would outweigh the disfavored status of being Asian American. One student bragged about applying as a humanities major so as not to have to compete with fellow Asian Americans in STEM and circumvent the usual label of being “robotic” — which only applied to their race. After arriving at Yale, I heard a horror story of a college student reviewing his admissions file and seeing the word “diversity” stamped onto the page. While unverifiable, the valence of that anecdote revealed what many students were afraid to admit: Affirmative action brought every student’s worth into question.

“Indeed,” Thomas writes, “if our history has taught us anything, it has taught us to beware of elites bearing racial theories.” Justice Ketanji Brown Jackson may claim that life’s outcomes are the province of race, yet Thomas grew up in the segregated South. He learned that “individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race.” In “enduring hope,” he pronounces his vision of a nation that lives up to its principles of equality.

Well said, Justice Thomas. Well said.

Sahar Tartak is a sophomore at Yale University, where she serves as editor-in-chief of the Yale Free Press. 

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