Clarence Thomas’ Long Battle Against Affirmative Action
Originally published May 9, 2023, this story was updated on June 29, 2023.
When Clarence Thomas was accepted to Yale Law School in 1971, the school’s stated goal was for students of color like him to make up about 10% of its incoming class. It was part of the nationwide affirmative action movement in which schools and workplaces actively recruited women and people of color into arenas where they had long been underrepresented.
For decades, many universities have considered race as one admissions factor to help create a diverse student body. Thomas has long remained staunchly opposed to affirmative action. FRONTLINE’s recent documentary, Clarence and Ginni Thomas: Politics, Power and the Supreme Court, examined that opposition within the larger context of Thomas’ rise to power and how the couple has influenced American law and politics.
In a decision expected to have far-reaching implications for universities and students across the country, the Supreme Court ruled on Thursday, June 29, that Harvard and the University of North Carolina’s programs considering race in college admissions are unconstitutional. Thomas, now the longest-serving justice on a solidly conservative court, sided with the majority, upending decades of precedent. Below, FRONTLINE examines Thomas’ stance on affirmative action from his time in law school to Thursday’s ruling.
‘You had to prove yourself every day’
Thomas arrived at Yale Law School as one of 12 Black students. One of his Black classmates told Thomas biographers that she recalled a member of the law school admissions committee saying there were no Black students qualified to be there.
“I do think he believed that people assumed he was there as a beneficiary of affirmative action and it grated on him,” John Bolton, former national security adviser and a classmate of Thomas’ at Yale, told FRONTLINE in an interview for the documentary.
In 1980, Thomas said at a meeting of Black conservatives, “You had to prove yourself every day because the presumption was that you were dumb and didn’t deserve to be there on merit.”
But Thomas “was at war with himself” on affirmative action, according to the biography Supreme Discomfort by Kevin Merida and Michael Fletcher. In 1983, as head of the Equal Employment Opportunity Commission (EEOC), he said that affirmative action laws were of “paramount importance” to him. “But for them, God only knows where I would be today,” he said.
Thomas would come to believe that affirmative action harms the very people it claims to benefit, writing in a later Supreme Court opinion that Black and Hispanic students “who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable” and that would negatively impact their self-confidence.
While working in Washington, Thomas came to the attention of the White House and became a front man for former President Ronald Reagan on issues of race.
“He was dispatched to groups of anywhere from five people to 500 people to discuss the important issues, as the Republican Party saw them,” Thomas’ former girlfriend Lillian McEwen told FRONTLINE in an interview for the documentary. “And his thinking about affirmative action, I would say, probably evolved more from these speeches that he was giving all over the country than from a personal, experienced hatred of affirmative action.”
After Reagan appointed Thomas chair of the EEOC in 1982, Thomas shifted the agency’s efforts from broad, class action race discrimination lawsuits to more narrowly defined bias against individuals.
The moves helped Thomas rise within conservative politics throughout the 1980s, and in 1991 former President George H. W. Bush nominated him for the Supreme Court. “The fact that he is Black and a minority has nothing to do with this in the sense that he is the best qualified at this time,” Bush said at the time.
But his critics didn’t see it that way.
“Clarence Thomas stands to be one of the great beneficiaries in American life of affirmative action,” Harvard Law Professor Randall Kennedy, who wrote a book of essays on racial justice and the Supreme Court, said in the FRONTLINE documentary.
Thomas’ affirmative action opinions on the Supreme Court
The first affirmative action cases to reach the Supreme Court once Thomas joined the bench were in 2003 in separate cases involving two white students who sued after being denied admission to the University of Michigan — one to its undergraduate program and one to its law school.
The court’s majority ruled in Grutter v. Bollinger that universities could consider applicants’ race in a “narrowly tailored” way to further “the compelling interests” of achieving a diverse student body. In a dissent, Thomas argued that race-conscious admissions violate the Equal Protection Clause of the 14th Amendment. He also wrote that universities only prize diversity “to obtain their aesthetic student body.”
In the other case, Gratz v. Bollinger, the court’s majority found that the university’s use of a racial point system in admissions was unconstitutional. Thomas wrote a concurring opinion.
In 2013, the Supreme Court reaffirmed its stance on Grutter in Fisher v. University of Texas, but Thomas dissented again, writing that the court should have overturned Grutter.
The majority opinion in Grutter had predicted that “25 years from now, the use of racial preferences will no longer be necessary” to maintain diversity in schools. But research shows that racial disparities in colleges still exist 20 years later.
On Thursday, the court’s opinion stated that “Twenty years have passed since Grutter, with no end to race-based college admissions in sight.”
The cases behind that opinion, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, were taken up by the Supreme Court last year. Students for Fair Admissions is an organization led by legal activist Eric Blum who has coordinated dozens of anti-affirmative action lawsuits, including Fisher. The group argued in the suit against Harvard University that Asian Americans are discriminated against in favor of white applicants in the admissions process. In the suit against UNC, it called back to Thomas’ argument in Grutter alleging that consideration of race violates the 14th Amendment.
Issuing a joint opinion on both cases, the court ruled in favor of Students for Fair Admissions, holding that the schools’ affirmative action practices violate the Equal Protection Clause of the 14th Amendment. Chief Justice John Roberts’ majority opinion stated that the schools’ use of affirmative action in admissions does not satisfy the requirements of considering race in a “narrowly tailored” way, a requirement laid out in the Grutter decision. The opinion argued that the court could not measure the educational benefits of diversity, and that at Harvard, race is a negative factor in admission for Asian American students.
Thomas wrote a concurring opinion, providing what he said was “an originalist defense of the colorblind Constitution,” writing that “all forms of discrimination based on race — including so-called affirmative action — are prohibited under the Constitution.”
The court’s opinion, he wrote, makes clear that Grutter is “for all intents and purposes, overruled.”
The universities had said race is one factor in a holistic admissions process. Harvard and UNC — and the 60 groups that filed amicus briefs in their support — argued that students benefit from diverse campuses, which help foster critical thinking and counter bias in students.
During oral arguments for the cases in October 2022, Thomas repeatedly questioned the lawyers on the educational benefits of diversity.
“I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” Thomas said.
In his concurring opinion, Thomas reiterated his disagreement with the argument that racial diversity in student bodies merits affirmative action.
“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 other of whom is black,” he wrote.
Unlike Grutter and Fisher, the plaintiff in the recent cases didn’t only represent white students. That makes Students for Fair Admissions, which says it represents over 20,000 students and parents, “the perfect plaintiff” for the court’s conservative majority to rule on affirmative action, Cedric Powell, a visiting professor at Howard University’s law school, told FRONTLINE. “Now we have a minority group making that claim that [they are] being discriminated against,” he said in an interview before the ruling.
That fact and the current conservative majority on the court led Supreme Court watchers to expect Thursday’s ruling against affirmative action.
Thomas’ influence also extends beyond the bench in the cases: Lawyer William Consovoy, who worked with Blum in Fisher and the current cases before the court, was one of the justice’s former clerks. (He died earlier this year.) Thomas’ wife, Ginni, serves on the board of an organization that filed an amicus brief for both cases arguing that affirmative action is discriminatory.
“It’s almost certainly the case that [Thomas’] personal biography has shaped his jurisprudence,” Rick Banks, a Stanford law professor, told FRONTLINE in an interview before the ruling. “It’s pretty clear which way his vote is going to go.”
Watch Clarence and Ginni Thomas: Politics, Power and the Supreme Court:
