On Monday the Supreme Court decided the affirmative action case Fisher v. University of Texas with a ruling that some had predicted might augur broader implications for the use of race in university admissions but will likely have a limited impact. The Court ruled 7-1 that an explicitly race-based UT admissions policy is allowable, as long as it is targeted to the school’s educational goals and is not used for racial balancing. The Justices ordered the lower court that decided against plaintiff Abigail Fisher to give the state’s policy another look.
More interesting than the majority opinion was Justice Clarence Thomas’s lengthy concurring opinion, which harshly condemned the decision—Grutter v. Bollinger, 2003—that buttressed UT’s admission policy.
Rather than spending pages trying to conform to the tortured logic of previous court decisions that obliquely justified race consideration in university admissions, as the majority opinion did, Thomas directly laid out the case against racial discrimination as such, digging up quotes used by defenders of slavery and segregation that sound remarkably similar to excuses affirmative action defenders repeat today.
For example, Thomas quoted slavery defenders arguing that the institution benefitted blacks: “Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually.” Similarly, segregationists used to claim that school segregation helped blacks: “We shall get a finer, better balance of spirit; an infinitely more capable and rounded personality by putting children in schools where they are wanted.”
Nowadays, Thomas notes, we hear affirmative action defenders such as the UT admissions board argue that race discrimination will allow blacks to feel more “secure,” be among their own kind, and take advantage of more “leadership opportunities.” Thomas rebuts those claims: “The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.”
Modern-day Democrats were no doubt horrified to hear themselves compared to slaveholders and segregationists—i.e. fellow Democrats of yore. (MSNBC’s Chris Hayes led his Fisher segment Monday night with the line, “Guess who Justice Thomas compared to slaveholders and segregationists today? Me! And probably you, too…”)
Though Justice Thomas concurred with the majority opinion—the Court ruled on only a narrow aspect of Fisher—his stinging rebuttal of Grutter v. Bollinger constituted a de facto rejection of the majority’s decision. (The lone dissenting Fisher vote was from Justice Ruth Bader Ginsburg, who was happy to trust the University when it said its racial discrimination policy was copacetic and needed no further scrutiny.)
But the rest of the Court was too deferential to Grutter. Six Justices besides Thomas upheld the view that, if colleges are going to consider race in university admission policies, they must be prepared to justify why doing so is necessary. The Justices ruled that courts shouldn’t blindly trust universities on whether their race-based policies are being implemented narrowly enough, but conceded Grutter’s finding that courts must show universities “deference” in trusting that these policies support their educational goals.
Yet government should not be allowed to use race at all in hiring or acceptance decisions in the public sector. Title VI of the Civil Rights Act of 1964 expressly banned race discrimination in programs that receive federal money, even though the Court has steadily weakened this prohibition over the years (e.g., University of California v. Bakke, 1978; Grutter).
The Supreme Court has previously ruled that it is acceptable to use race as a “plus factor” in admissions because of the educational benefit that supposedly results from “enhanced classroom dialogue.” Yet this benefit obviously doesn’t extend to a white student like Fisher, who was denied admission to the 2008 UT Austin class, but whose parents nonetheless must subsidize less-qualified students with their tax dollars.
To the extent that the Court addressed admission policy at all, it should have cited academic achievement, accomplishment in extracurricular activities, teacher recommendations, personal character—anything and everything but skin color—as acceptable factors to consider. But the Supreme Court’s 5-4 ruling in Grutter allowed race to be explicitly weighed. And almost no one in Monday’s majority opinion even questioned that ruling.
Only Justice Thomas saw fit to dissect the Grutter decision. His eloquent opinion and willingness to go against the crowd revealed him once again to be the unheralded intellectual leader of the conservative wing of the Supreme Court.
Previously published in modified form at Red Alert Politics
- Clarence Thomas bluntly calls for end of affirmative action (thegrio.com)
- Clarence Thomas Compares Affirmative Action to Segregation (theepochtimes.com)
- Town Hall: McConnell and Rosen on Affirmative Action (constitutioncenter.org)
- Clarence Thomas Continues His Long War on Affirmative Action (reason.com)
- Race Matters: Clarence Thomas Compares Affirmative Action To Slavery And Segregation “The Policy Hurts More Blacks Than Helps” (bossip.com)