Thomas used his concurring opinion as an opportunity to argue against the concept of affirmative action entirely, which he calls a form of "racial discrimination."
The Supreme Court’s majority ruling on affirmative action in the Fisher v. University of Texas case called for a stricter standard to be met when justifying affirmative action in an educational environment, but didn’t go so far as to argue against affirmative action entirely, instead insisting that schools must prove “no workable race-neutral alternatives would produce the educational benefits of diversity.”
In the Court’s ruling, penned by Justice Anthony Kennedy, the majority of Justices agreed that the case should be sent back to the lower court, but not that affirmative action as a concept was unconstitutional, citing Grutter v. Bollinger, a 2003 ruling on affirmative action in which, as Kennedy explained in his opinion, “the Court upheld the use of race as one of many ‘plus factors’ in an admissions program that considered the overall individual contribution of each candidate.”
But Justice Clarence Thomas, who dissented in the Grutter decision that was issued a decade ago Sunday, used his concurring opinion as an opportunity to argue against the concept of affirmative action entirely, which he calls a form of “racial discrimination.”
“Attaining diversity for its own sake is a nonstarter,” he wrote. “[T]he educational benefits flowing from student body diversity—assuming they exist—hardly qualify as a compelling state interest.”
Clearly questioning the idea that a student’s educational experience is improved by diversity, he argued those presumed benefits are still not important to justify affirmative action. “As should be obvious, there is nothing ‘pressing’ or ‘necessary’ about obtaining whatever educational benefits may flow from racial diversity,” he wrote.
Thomas also repeatedly compared the arguments used in favor of affirmative action programs to the arguments used to justify segregation and even slavery.
“Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950’s, but emphatically rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then, see Brown v. Board of Education,” he wrote, “the alleged educational benefits of diversity cannot justify racial discrimination today.”
“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 added.
Thomas further argued that the University of Texas’s affirmative action program is “based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities,” adding that, “The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.”
“I think the lesson of history is clear enough: Racial discrimination is never benign,” he added. “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.”
Thomas also argued that the schools “racial tinkering” ultimately harms the people it is designed to help.
“Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates,” he wrote, and reiterating a point he made in a prior decision, he wrote that the the University’s discrimination ‘stamp[s] [blacks and Hispanics] with a badge of inferiority.’”
“Although cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping,” he added.
Thomas’s opposition to affirmative action is not new, but it has been called into question by some who argue that he was the beneficiary of a subtler form of affirmative action, specifically noting that he did not necessarily have the typical resumé of a Supreme Court justice when he was nominated.