Jurisprudence

Clarence Thomas Has One Great Point About Affirmative Action

A younger U.S. Supreme Court Associate Justice Clarence looking into the camera from his chamber's office.
Justice Clarence Thomas poses for a portrait in his chambers at the Supreme Court in 2002. David Hume Kennerly/Getty Images

On Monday, the Supreme Court will hear arguments in a case manufactured to abolish affirmative action in higher education. The justices will weigh race-conscious admissions programs at both Harvard University and the University of North Carolina, and there’s little doubt how they’ll rule: All six conservative justices are poised to declare that colleges’ consideration of race violates the Constitution’s equal protection clause and the Civil Rights Act of 1964, which applies equal protection standards to private institutions.

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Because that argument was cynically engineered by white conservatives aggrieved by “reverse racism”—and is so clearly at odds with an original understanding of the 14th Amendment—progressives have lined up to defend Harvard and UNC. (Just look at the amicus briefs filed in support of the universities by seemingly every liberal group under the sun.) That instinct makes sense: Killing affirmative action will have a devastating impact on Black, Hispanic, and Native students and such a ruling would be totally unjustified by the text or history of the Constitution.

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But it doesn’t follow that the schools in this case use race-conscious admissions for exclusively noble purposes. Instead, elite institutions often use these programs as a Band-Aid to cover deeper structural barriers to genuine diversity among their student bodies—because addressing those problems would require sacrifices that administrators aren’t willing to make. A Supreme Court decision outlawing affirmative action will become a scapegoat for universities that see a plunge in enrollment among underrepresented minorities. Progressives should not let them get away with it.

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Although the latest legal assault on affirmative action is built on bad history and worse motivations, it did have the benefit of revealing unseemly details about the elite admissions process. The litigation gave the public an unprecedented glimpse into Harvard’s standards, which reflect horribly on the school. As Aaron Mak explained in Slate after the trial, Harvard has a preference for four specific groups of applicants known as ALDC: athletes, legacies, those on the dean’s list (frequently because of family donations), and the children of faculty. ALDCs constitute about 5 percent of applicants but 30 percent of the admitted class. Their admissions rate sits at about 45 percent compared to the normal rate of less than 5 percent.

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In theory, ALDC preferences are colorblind. In practice, they operate as a massive affirmative action program for white applicants. Over a recent six-year period, 2,200 out of 4,993 admitted white students were ALDC—a figure significantly higher than the overall number of admitted students who are Black (1,392) and Hispanic (1,283). White ALDC students are not overrepresented because they happen to be more qualified; to the contrary, about three-fourths of them would have been rejected without the ALDC boost.

These preferences perpetuate past injustices and inequalities, rewarding white kids for being born into rich families. Harvard graduates and their children are still disproportionately white, so legacy admissions are, too. Black Americans were shut out of education for centuries by law, then by custom; from 1890 to 1940, Harvard admitted an average of three Black students a year. Over the last century, ongoing economic inequality along racial lines has locked racial minorities out of elite institutions in the absence of formal segregation. Legacy admissions maintain the chain of racial privilege awarded to white families with longstanding ties to schools like Harvard.

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The other preferences don’t fare much better. Because white families are more likely to be richer, they’re also more likely to lavish money on a school to ensure their children’s admission. White academics are overrepresented among Harvard’s faculty, and their kids get an immediate leg up. The boost for athletes is especially obscene, since it benefits applicants who can afford to participate in expensive “country club sports” like fencing, polo, and lacrosse. Parents may need to spend tens of thousands of dollars a year to help their kids play niche sports competitively. Once again, the families who can afford this luxury are disproportionately white.

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If elite universities eliminated preferences for ALDC, they’d have substantially more space in each incoming class for non-white applicants. Their insistence on maintaining these pseudo-colorblind preferences undermines their arguments about the need for affirmative action: They want to have their cake and eat it too, admitting a surfeit of rich white kids whose families can pay full freight while insisting that race-conscious admissions are the only way to achieve true diversity.

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Focusing solely on ALDC students, though, fails to capture the full scope of the problem. The issue is more fundamental. Ostensibly merit-based admissions, too, have a disparate impact on racial minorities who are traditionally underrepresented in higher education—namely Black, Hispanic, and Native students. Universities could dramatically increase the diversity of their student bodies by altering requirements for admission. But doing so would risk undermining their elite status, and all the benefits that come with it. So schools use affirmative action as a shortcut to diversity without addressing the discriminatory impact of their broader standards.

The LSAT is a case in point. Most law schools require applicants to take the LSAT, though the test does not appear to predict passage of the bar exam. It does, however, serve to limit Black enrollment in law schools. Yet law schools are hesitant to displace LSAT scores as a primary criterion for admissions. Why? Because these scores play a major role in the all-important U.S. News rankings. If elite institutions downgraded or abandoned consideration of LSATs in admissions, they could take a more holistic view of applicants—recognizing, for instance, that underrepresented racial minorities have less access to resources that would help improve their test scores. But taking that step would risk a lower ranking, which would trigger an existential crisis (and possibly a donor revolt) at the law school.

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Although Justice Clarence Thomas gets the history of equal protection dead wrong, he’s right about this hypocrisy. In a famous 2003 dissent, the justice pointed out that a school’s use of “the LSAT and other allegedly merit-based standards” contributed to the white overrepresentation that it sought to remedy. “There is,” he wrote, “nothing ancient, honorable, or constitutionally protected about selective admissions”; they simply help an institution preserve its elite status. Every law school could jettison the LSAT requirement and build a diverse student body more organically, but they refuse to risk a hit to their reputation. Similarly, universities could diminish the importance of the SAT and ACT, but they won’t accept the tradeoff of a lower spot on next year’s U.S. News rankings.

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None of this gives the Supreme Court a good reason to strike down affirmative action. The court has authorized the practice since 1978 and approved it as recently as 2016. It is perfectly compatible with the equal protection clause (and, by extension, federal laws that apply equal protection to private education). Even if the way these schools enact affirmative action is bad policy, the courts have no business overruling the people’s decision to let it stand in most states.

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But we should not lose sight of the fact that these programs are, at bottom, an effort to make up for schools’ discriminatory admissions standards, which ensure that countless white students begin the game on second base and convince themselves they hit a double. If and when the Supreme Court eradicates race-conscious admissions, no one should accept the collapse in diversity as an inevitable outcome. We should, instead, demand that schools use other tools to maintain and improve minority representation among their student bodies—to prove that their commitment to diversity was not mere pretext to prop up a grossly unfair and inequitable admissions system under the guise of racial justice.

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