Justice Thomas’ concurrence declares “[t]wo discriminatory wrongs cannot make a right” and we should not pick “winners and losers” based upon “the color of their skin”
With Students for Fair Admissions v. Harvard 600 U. S. ____ (2023), a six to three majority held that using race in admissions to universities violates the equal protection clause of the 14th Amendment. Justice Roberts wrote the majority opinion, and Justices Sotomayor, Kagan, and Jackson dissented. Much attention has been given to the dissent of Justice Jackson and her citation to facts in turn cited by amicus curie. [1]
This brief article, however, will focus solely upon the concurrence of Justice Clarence Thomas and his rationale for both supporting the majority and also for writing his strongly-worded concurrence. [2] Justice Thomas explained that “all such discrimination,” including what is referred to as either race-based admissions or “affirmative action,” has what he called pernicious effects:
Because the Court today applies genuine strict scrutiny to the race-conscious admissions policies employed at Harvard and the University of North Carolina (UNC) and finds that they fail that searching review, I join the majority opinion in full. I write separately 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. (Concurrence by Thomas, p. 2.)
Justice Thomas was especially critical of Grutter v. Bollinger, 539 U. S. 306, 326, a decision of 20 years ago, which applied strict scrutiny to policies favoring one race over another in school admissions but noted that such preferences — ostensibly to redress past wrongs by virtue of student admissions today — should have an ending time-limit. As Griutter held, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” (539 U. S., at 343.) Thomas made it clear Grutter was wrongfully decided and should be overturned:
I wrote separately in Grutter, explaining that the use of race in higher education admissions decisions—regardless of whether intended to help or to hurt—violates the Fourteenth Amendment. Id., at 351 (opinion concurring in part and dissenting in part). In the decades since, I have repeatedly stated that Grutter was wrongly decided and should be overruled. Fisher v. University of Tex. at Austin, 570 U. S. 297, 315, 328 (2013) (concurring opinion) (Fisher I ); Fisher v. University of Tex. at Austin, 579 U. S. 365, 389 (2016) (dissenting opinion). Today, and despite a lengthy interreg- num, the Constitution prevails. (Id., p. 3)
After a lengthy discussion of the phrase “equal protection under the law” the enactment of both the post-Civil War constitutional Amendment and the Civil Rights Acts of 1866 and 1875, Justice Thomas then discussed the supposed rationale for allowing admissions to be a deciding factor in school admissions. Specifically, the arguments that such mesas meet the “strict scrutiny” the Constitution demands where the government itself (or those taking government aid) distinguishes between citizens based on their race. He therefore discussed the rationale that “racial diversity” improves education, noting the lack of any argument that such improves, for example, text scores, and noting that Harvard and similar universities argue that racial diversity increases the viewpoints students may be exposed to while, at the same time, such schools do not considere diversity of viewpoints important in areas other than race qua race:
More fundamentally, it is not clear how racial diversity, as opposed to other forms of diversity, uniquely and independently advances Harvard’s goal. This is particularly true because Harvard blinds itself to other forms of applicant diversity, such as religion. See 2 App. in No. 20–1199, pp. 734–743. It may be the case that exposure to different perspectives and thoughts can foster debate, sharpen young minds, and hone students’ reasoning skills. But, it is not clear how diversity with respect to race, qua race, furthers this goal. Two white students, one from rural Appalachia and one from a wealthy San Francisco suburb, may well have more diverse outlooks on this metric than two students from Manhattan’s Upper East Side attending its most elite schools, one of whom is white and [sic] other of whom is black. If Harvard cannot even explain the link between racial diversity and education, then surely its interest in racial diversity cannot be compelling enough to overcome the constitutional limits on race consciousness. (Id., pp. 25-26.)
Justice Thomas was therefore critical of the arguments set forth by Harvard and the University of North Carolina which, according to Justice Thomas, used vague goals of societal diversity — without explanation as to any specifics — to justify the use of admissions to disadvantage specific students in their admissions to specific universities. [3] Justice Thomas therefore concluded that permitting consideration of race by publicly-funded universities gives the impression, and, indeed, constitutes a policy whereby race is used to pick “winners and losers:”
Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent. (Id., p. 38.)
Therefore attempts to redress past discriminatory wrongs by virtue of discriminating in the present must do the following in order to withstand Constitutional muster:
First, to satisfy strict scrutiny, universities must be able to establish an actual link between racial discrimination and educational benefits. Second, those engaged in racial discrimination do not deserve deference with respect to their reasons for discriminating. Third, attempts to remedy past governmental discrimination must be closely tailored to address that particular past governmental discrimination. (Id., p. 23.)
Such a standard is difficult to meet, noted Justice Thomas, where we are applying broad societal goals in a fashion that discriminates against specific students — such a Chinese-American applicant — applying for college today:
How, for example, would JUSTICE JACKSON explain the need for race-based preferences to the Chinese student who has worked hard his whole life, only to be denied college admission in part because of his skin color? If such a burden would seem difficult to impose on a bright-eyed young person, that’s because it should be. History has taught us to abhor theories that call for elites to pick racial winners and losers in the name of sociological experimentation. (Id., p. 53.)
In his characteristic style, Justice Thomas reinforces this point by noting the persons the dissenting Justices argue may be discriminated against today — Asian-Americans — have historically been discriminated against just as African-Americans have, noting law specifically targeting Asians and, of course, the forced internment and theft of property from Japanese-Americans during World War II. Indeed, the irony of the negative effect of Harvard’s admissions policies upon Asian-Americans should not go unnoticed:
As the Court’s opinion today explains, the zero-sum nature of college admissions—where students compete for a finite number of seats in each school’s entering class—aptly demonstrates the point. Ante, at 27. Petitioner here represents Asian Americans who allege that, at the margins, Asian applicants were denied admission because of their race. Yet, Asian Americans can hardly be described as the beneficiaries of historical racial advantages. To the contrary, our Nation’s first immigration ban targeted the Chinese, in part, based on “worker resentment of the low wage rates accepted by Chinese workers.”
In subsequent years, “strong anti-Asian sentiments in the Western States led to the adoption of many discriminatory laws at the State and local levels, similar to those aimed at blacks in the South,” and “segregation in public facilities, including schools, was quite common until after the Second World War.” Indeed, this Court even sanctioned this segregation—in the context of schools, no less. In Gong Lum v. Rice, 275 U. S. 78, 81–82, 85–87 (1927), the Court held that a 9-year-old Chinese-American girl could be denied en- try to a “white” school because she was “a member of the Mongolian or yellow race.”
Also, following the Japanese attack on the U. S. Navy base at Pearl Harbor, Japanese Americans in the American West were evacuated and interned in relocation camps. Over 120,000 were removed to camps beginning in 1942, and the last camp that held Japanese Americans did not close until 1948. . . . In the interim, this Court endorsed the practice. Korematsu v. United States, 323 U. S. 214 (1944).
Given the history of discrimination against Asian Americans, especially their history with segregated schools, it seems particularly incongruous to suggest that a past history of segregationist policies toward blacks should be remedied at the expense of Asian American college applicants. But this problem is not limited to Asian Americans; more broadly, universities’ discriminatory policies burden millions of applicants [4] who are not responsible for the racial discrimination that sullied our Nation’s past. (Id., p. 42-44; citations and footnotes omitted but emphasis added.)
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1 - Justice Jackson’s dissent makes several points worthy of further discussion, including her citation to the claims in amici briefs, which are worthy of further discussion.
2- Where this opinion will lead us in the future is also outside the scope of this relatively brief article and is also worthy of further discussion.
3 - As the majority opinion discussed, the current use of race lessens the percentage of certain racial groups, such as Asian-American or European-American students, in order to increase the number of members of other racial groups, such as African-American or Hispanic students. However, it must be noted that the two universities at issue in Students for Fair Admissions have admitted their current practices are not based upon remediation of any specific past harm at their institution.
4 - There is no doubt the majority of such students of Asian-American and European-American ancestry were born in years from the late 1990's to the early 2000's.
