David R. Jones (137830)
David R. Jones Credit: Contributed

There is every reason to believe that the U.S. Supreme Court is poised to outlaw affirmative action, the tool that has given countless women and people of color access to equal opportunities. During hearings last month, the court’s conservative 6-3 majority made it clear that it was ready to rule that the race-conscious admissions programs at Harvard and the University of North Carolina (UNC) are unlawful.   

The ringleader of the campaign to kill affirmative action is Justice Clarence Thomas, the longest-serving justice and the court’s second Black member.  His more than 700 opinions have staked out controversial positions on abortion, guns and race that are now followed by a majority of the court.  His views have stirred something dangerous.

“I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” Thomas quipped during the recent court hearing. “It seems to mean everything for everyone.” 

As disingenuous statements go, this ranks pretty high. Does Clarence Thomas actually believe that his race has nothing to do with his current position on the Supreme Court? Race is the reason Thurgood Marshall, a much more qualified judge, was put on the Supreme Court. And it’s the reason Thomas was put on the highest court.  

Comments like these, however, do provide cover to prominent conservatives who acknowledge racism as a constant, ineradicable feature of American life, but maintain that the only hope for oppressed racial minorities lie within themselves. To be sure, Thomas’ words are also meant to be a distraction from the real legal issue. More on that later.  

The Supreme Court will likely announce its decisions in both the UNC and Harvard cases sometime next year.  Nine states have already ended consideration of race in university admissions, including Arizona, California, Florida, Idaho, Michigan, Nebraska, Oklahoma, and Washington.

Both Justice Thomas and I attended Yale Law School during the early years of its affirmative action program, when sharp debate raged in the school about the cost vs. benefit of race-conscious admissions.

I strongly believed that bar exams, admissions tests and grading scales were culturally biased, and that affirmative action leveled the playing field, granting folks like Justice Thomas and myself admission. I have dedicated my life to racial and economic equity, and social justice ever since.

Thomas believed that Blacks did not need what he called “separate-but-lower” admission standards at Yale, even though Thomas enjoyed all the advantages of affirmative action. In his 2007 memoir, “My Grandfather’s Son,” Thomas claimed it diminished his achievements at the law school. He maintained minority students should be able to prove their capabilities without racial preference. 

For someone who reaped the benefits of affirmative action, it’s awfully hypocritical to now close the door on others benefitting. And affirmative action as a factor in his career did not diminish his achievements, certainly not in the 21st century judging by how revered he is among conservatives.  

Thomas, who is a big originalist and likes to rely on a plain reading of the U.S. Constitution, can’t rely on those two forms of analysis when it comes to the Equal Protection Clause, which is the basis for the current fight on affirmative action. The Equal Protection Clause as a textual matter does not support his affirmative action position. The clause is vague at best, but a plain reading of it does not say you cannot help Blacks. 

In fact, there is evidence that the framers of the 14th Amendment believed in race-conscious programs to help Blacks. Consider the Freedman’s Bureau which was established by Congress in 1865 to provide relief and help to formerly enslaved people to become self-sufficient. 

The odds of affirmative action surviving this court are not good. But I am encouraged by the stance of the newest Supreme Court Justice, Ketanji Brown Jackson, who joined the court last month.  During oral arguments in the UNC case, she contrasted two hypothetical candidates: a White student who would be the fifth generation in his family to attend UNC and a Black student descended from slaves who would be his family’s first college student.

“Now, as I understand your no-race-conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count,” Jackson said. 

If admissions officers could consider factors like whether applicants were parents, veterans, disabled or legacy applicants — but not if they were members of racial minorities who faced extraordinary challenges – that has “the potential of causing more of an equal protection problem than it’s actually solving,” Justice Jackson argued.

And that is the point: It is fair to take race, a deep-rooted attribute in American life, into consideration alongside academic achievement and multiple other elements.

A level playing field requires that our stories be told, and truths are heard, and whether people like Clarence Thomas acknowledge it or not, race is the elephant everyone knows is in the room.

David R. Jones, Esq., is President and CEO of the Community Service Society of New York (CSS), the leading voice on behalf of low-income New Yorkers for more than 175 years. The views expressed in this column are solely those of the writer. The Urban Agenda is available on CSS’s website: www.cssny.org.

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