The Diasporist

Affirmative Action and Justice Thomas’ dissent in Grutter

In Legal Musings on November 16, 2009 at 11:16 pm

This is an informal piece I composed for one of my courses at Georgetown; to facilitate others’ viewing of the piece I am posting it on my ill-updated blog:

Though not referenced directly in our reading, I think this is an appropriate time to discuss affirmative action, an issue which Prof. Seidman discussed at length in lecture, and is of great interest and controversy to all of us.

I reference the case of Grutter v. Bollinger. 539 U.S. 306 (2003). The facts are relatively simple. Grutter was the case against the University of Michigan law school. The plaintiff was a white woman who was denied admission despite having academic qualifications that, she claimed, were more than sufficient to gain admission. She charged that the law school admitted minority students with sharply lower qualifications (an uncontested fact), and further alleged that the school unconstitutionally used racial preference in admitting students. The Supreme Court upheld the law schools admission policy.

I would go into the machinations of how the court employed the equal protection doctrine of the 14th amendment if it were necessary. But, I don’t think it is; I am happy to dispense with the idea that this case was about interpreting whether Barbara Grutter’s 14th amendment rights were violated, though nearly the entire court seems to think that that is exactly what the case is about. The only Justice who seems willing to move beyond the ritualized dance of the equal protection debate is Justice Thomas, who as the sole black member of the court, analyzes the issue in a way that no other court member did, or could. Even though the other dissenting Justices (Rehnquist and Kennedy) come to the same conclusion I would have, they do so by way of the old-style rule based formulations that, at least in this case, I deem to miss the mark in deciding if these policies ought to be permitted. In contrast, Justice Thomas’ opinion, for its clarity and motivation, is the only opinion with which I can identify and agree.

Justice Thomas begins his opinion by quoting Fredrick Douglass, who argues that that pity-motivated white interference into the lives of blacks does harm, even if well intentioned. Though Thomas seems to go on to do lip service to the kind of faux-formalist reasoning that is often seen in Supreme Court decisions, it is not long before one can see that this central idea motivates his opinion. That is, we could easily charge that Justice Thomas only weakly attempts to put up the façade of formalist legal reasoning. For him, it seems the kind of affirmative action the University of Michigan law school employs is unconstitutional because it is bad.

For example, in response to the claim that racial preference is necessary to achieve a sort of educational benefit, Thomas notes that black students do not perform better in racially diverse academic atmospheres, even citing empirical evidence that black students report higher academic achievement at historically black colleges and universities, which often enroll but a handful of non-black students. Thomas further asserts that the type of policies used by the law school are themselves harmful to the students they purport to help, arguing that the policies place black students in academic environments for which they are ill prepared and mismatched, setting them up for a cold dose of reality which is damaging to their self-esteem and sense of dignity, all for the sake of the “aesthetics” of diversity. These arguments take center stage in Justice Thomas’ dissent, while the interplay of equal protection doctrine seems to take a backseat.

To me, it is doubtful that a non-black Justice would be able, or willing, to come to these conclusions as Justice Thomas has – I know that my experience as a black man in the academic arena has convinced me of their veracity. For some, facing the ugly reality that colleges and universities (including law schools) systematically admit black students who are underqualified might run afoul of the “progressive position” that Richard Ford talks about in his article on identity politics. Perhaps Justice Thomas’ assertion that to university administrators, the true interests of black students give way to the politically correct motives of producing the paradoxical “elite and diverse” law school class, even though those administrators know that the very mechanisms they use to ensure “eliteness” are the precise cause of their problems with racial diversity might also violate that elusive “progressive position”. Whichever the assertion, can there be any doubt that someone who has never been subjected to the type of racial experimentation that Justice Thomas criticizes might lack the ability to come to these same conclusions?

Many would challenge Justice Thomas’ assertions by noting that there is not a more high profile beneficiary of the very policies he seeks to strike down; cries of hypocrisy and racial betrayal are commonplace, and both he and I are quite familiar with them. But, I return to the Ford article, which cites Henry Frankfurter’s pamphlet On Bullshit. In making these arguments, Justice Thomas shows himself to care little for what any one person might think of him. Compare that to the legions of academics and university administrators who must at least have some misgivings about admitting underqualified black applicants en masse, but remain silent out of fear of being thought to hold racial positions that are less than forward – thinking.
Justice Thomas’ obvious disagreement with the “liberal discourse” on race is made clear in his dissent, but I am also forced to wonder how he might confront the CRT discussion on affirmative action. I am led to believe that, despite his coming to a conclusion that most CRT scholars would disagree with, Justice Thomas’ analysis is in a way right in their tradition. It is plain to me that his race consciousness motivates his decision. Take for example the assertion we find in the “Introduction” to CRT piece we were assigned that the mainstream discourse on race misses the mark on the issue of racial subordination, and incorrectly formulates color-blindness as the opposite of racism. Justice Thomas doesn’t seem to attempt to view the issue of affirmative action as a question of preferring “color-blind” admissions over “racial preference” admissions as Justice Kennedy does, for example. That is, he doesn’t argue that color-blind admissions are better, or more constitutionally permissible because color-blind is good and racial preference is per se bad; he argues that racial preference in admissions is bad from the black students point of view, and bases much of his argument off of that assertion.

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  1. While I greatly appreciate your view on this, and certainly Justice Thomas’, I think your dismissal of the question of the plaintiff’s equal protection rights as mere “faux-formalism” is a bit hasty. As much as I fully understand the failures of formalism, our courts, especially the Supreme Court, must at heart actually interpret the constitution itself. The equal protection claim, and in general the idea behind it, is a central component to any discussion of affirmative action. There is a perfectly valid argument both from a formalist perspective and from a realist perspective of viewing the actual interests of all those who fall under a statute or regulation’s impact, be they from a textualist constitutional view or from a certain understanding of the principals of fairness. There are also valid (and I do not choose to say which I personally find more valid) arguments in opposition to the above referred to arguments.

    My point is not against your article in general and is in fact tangential at best but I would be remiss if not to point out that your dismissal of the equal-protection argument as unimportant or a gloss over other underlying issues is unjustly hasty.

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