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Justice Clarence Thomas Concurs As Supreme Court Rejects Racist College Admissions

In a sweeping endorsement of the promise and plain language of the Fourteenth

Amendment to the Constitution, which guarantees “equal protection under the laws,” the Supreme Court found that the race-based admissions policies and practices of Harvard University and the University of North Carolina are unconstitutional. Click this link to go straight to the opinion of the Court.

The Court said:

Proposed by Congress and ratified by the States in the wake of the Civil War, the Fourteenth Amendment provides that no State shall “deny to any person . . . the equal protection of the laws.” Proponents of the Equal Protection Clause described its “foundation[al] principle” as “not permit[ing] any distinctions of law based on race or color.” Any “law which operates upon one man,” they maintained, should “operate equally upon all.” Accordingly, as this Court’s early decisions interpreting the Equal Protection Clause explained, the Fourteenth Amendment guaranteed “that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States.”

It will surprise no one that the Court’s three activist Democrats dissented from the majority opinion, however, the majority pointed out in the strongest possible language that the principal dissent verged on dishonesty, saying:

The principal dissent wrenches our case law from its context, going to lengths to ignore the parts of that law it does not like. The serious reservations that Bakke, Grutter, and Fisher had about racial preferences go unrecognized. The unambiguous requirements of the Equal Protection Clause—“the most rigid,” “searching” scrutiny it entails—go without note. Fisher I, 570 U. S., at 310. And the repeated demands that race-based admissions programs must end go overlooked—contorted, worse still, into a demand that such programs never stop.

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.

While the opinion of the majority is a strong and unequivocal endorsement of the colorblind Constitution, it falls, at it often does, to Associate Justice Clarence Thomas to put the finest point on matters of race and the Constitution.

Justice Thomas’s Concurrence, which begins on page 49 of the PDF version of the opinion linked above is an elegant and eloquent survey of the history of the Fourteenth Amendment and the Supreme Court’s stumbles on the way to achieving “equal protection of the laws.”

The concurrence includes many quote-worthy paragraphs, but this is one of my favorites, especially in its admonition to beware of elites bearing racial theories:

“Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories.Parents Involved, 551 U. S., at 780–781 (THOMAS, J., concurring) We cannot now blink reality to pretend, as the dissents urge, that affirmative action should be legally permissible merely because the experts assure us that it is “good” for black students. Though I do not doubt the sincerity of my dissenting colleagues’ beliefs, experts and elites have been wrong before—and they may prove to be wrong again. In part for this reason, the Fourteenth Amendment outlaws government-sanctioned racial discrimination of all types. The stakes are simply too high to gamble.7 Then, as now, the views that motivated Dred Scott and Plessy have not been confined to the past, and we must remain ever vigilant against all forms of racial discrimination. (Emphasis by CHQ.)


“...Harvard and UNC ask us to blind ourselves to the burdens imposed on the millions of innocent applicants denied admission because of their membership in a currently disfavored race.

The Constitution neither commands nor permits such a result. “Purchased at the price of immeasurable human suffering,” the Fourteenth Amendment recognizes that classifications based on race lead to ruinous consequences for individuals and the Nation. Adarand Constructors, Inc., 515 U. S., at 240 (THOMAS, J., concurring in part and concurring in judgment). Consequently, “all” racial classifications are “inherently suspect…”. (Emphasis by CHQ.)

And finally:

The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our race. Only that promise can allow us to look past our differing skin colors and identities and see each other for what we truly are: individuals with unique thoughts, perspectives, and goals, but with equal dignity and equal rights under the law. (Emphasis by CHQ.)

  • Groff v. DeJoy

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