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Clarence Thomas: Affirmative Action Is Just Like Segregation

Josh Barro
Clarence Thomas

Joeff Davis via Flickr

Supreme Court Justice Clarence Thomas

Today, the Supreme Court sent the University of Texas' affirmative action program back for a lower court for review by a vote of 7-1.

Justice Clarence Thomas concurred in that decision but also wrote a scathing concurring opinion saying he would have rejected Texas' affirmative action program outright as unconstitutional.

In the opinion, which no other justice joined, Thomas called the idea that racial diversity at colleges improves education a "faddish theory."

" As should be obvious," wrote Thomas, "there is nothing 'pressing' or  'necessary' about obtaining whatever educational benefits  may flow from racial diversity."

Thomas repeatedly compared arguments for affirmative action in college admissions today to arguments for segregation in the 1950s and before. Here's Thomas:

It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society... The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks...

There is no principled distinction  between the University’s assertion that diversity yields  educational benefits and the segregationists’ assertion  that segregation yielded those same benefits.

He went on to associate his view with the arguments made by the plaintiffs in Brown v. Board of Education, the 1955 decission that prohibited racial segregation in public schools:

My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under  the equal-protection clause of the Fourteenth Amendment  to use race as a factor in affording educational opportunities among its citizens.”.. . The Constitution does  not pander to faddish theories about whether race mixing  is in the public interest. The Equal Protection Clause  strips States of all authority to use race as a factor in  providing education. All applicants must be treated equally  under the law, and no benefit in the eye of the beholder can  justify racial discrimination.

Thomas also wrote that universities' arguments about promoting diversity are canards and their real goal with affirmative action is to help black and Hispanic students—but that they're not actually helping.

He wrote that "discrimination is never benign" and "t he 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."

Thomas made two arguments that affirmative action hurts black and Hispanic students: It leads to them being admitted to schools where they have, on average, significantly lower SAT scores than white and Asian students; and it creates an impression (both internal and external) that their admissions are not based on merit.

Given the high bar that Thomas places for allowing any public policy that discriminates based on race, this policy analysis wouldn't matter for the constitutionality of the Texas program. 

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