The Affirmative Action Dissent of Justice Thomas

The Supreme Court has the powerful influence to decide crucial court cases, determine which laws are constitutional, and help establish the values and behavioral patterns of the US society. However, the powerful position also requires the Supreme Court to inevitably decide cases regarding very sensitive issues and complicated problems that can trigger emotional responses and yield dramatic consequences for US citizens. Over the last decade, one of the most important cases that related to racial discrimination was the 2003 case of Grutter v. Bollinger. Although the majority decision of the Supreme Court upheld the right of the University of Michigan Law School to use affirmative action practices during its admissions process, Justice Clarence Thomas disagreed with the majority decision and wrote a dissenting opinion to elaborate on his reasons for dissent. The opinion and arguments of Justice Thomas were most likely influenced by his personal interpretation of the constitution and his particular background.

Clarence Thomas was born and raised in a very poor and predominantly black neighborhood in Pin Point, Georgia. After obtaining his legal license, Thomas served as the Assistant Attorney General of Missouri from 1974 to 1977, after which he began working in Washington D.C as a legal assistant for Senator John Danforth. In the 1980s, the desire to enable more black people to participate in the Reagan administration encouraged President Reagan to appoint Thomas as the Assistant Secretary of Education of Civil Rights, Chairman of the Equal Opportunity Commission and then as a judge on the United States Court of Appeals. After just 15 months on the Court of Appeals, the first President Bush nominated Thomas to become the next Supreme Court Justice as the replacement for Thurgood Marshall, who was a significant Civil Rights advocate and the only Black justice serving on the Supreme Court (Kroft).

However, Thomas was not certain that he was ready for the prestigious nomination, as he was exhausted from receiving 5 nominations in a 10 year span and was frustrated that he would have to depart from the US Court of Appeals after having just recently begun serving the court. After receiving the nomination from President Bush, Thomas was forced to endure a brutal and dramatic confirmation process in which critics and senators bombarded him with constant attacks and humiliating experiences that developed in the public spotlight. After overcoming relentless criticism and intense interrogations from the Senate Judiciary Committee, a new attack was generated by Anita Hill, a former employee of Thomas’ who had claimed that he sexually harassed her 10 years ago, at a point when they were working together and were both single. The sensationalism of the Anita Hill story impelled the media to place an excessive amount of attention on the story, the Democrats utilized the story to delay and challenge the confirmation process, and Anita Hill was eventually called upon to testify in front of the Senate Judiciary Committee while 200 million television viewers watched (Kroft). Thomas adamantly and unequivocally denied the allegations as absolute falsehoods that were perpetuated and validated by the Democrats to obstruct his nomination because of his strong position against the abortion legislation of Roe v. Wade.

The confirmation process of Clarence Thomas was also challenged by the color of his skin. The fact that he was black, only 43 years old, and relatively inexperienced caused many of his critics to think that he was nominated by Bush because of his race. These critics maintained that affirmative action policies and cultural perceptions may have encouraged Bush to nominate Thomas to replace Justice Marshall based of his black skin color, and this stimulated a perception that Thomas was not qualified for the position, lacked the experience to succeed as a Supreme Court Justice, and was nominated for the position as a result of his race instead of his merit or his professional accomplishments (Kroft). Although Thomas eventually received the Senate Confirmation to become a Supreme Court Justice, the embarrassing and damaging experience of his judiciary confirmation process most likely influenced his opinion regarding the 2003 case of Grutter v. Bollinger.

Grutter was a Michigan resident who was rejected from the University of Michigan Law School despite being highly qualified for admission and despite having very high GPA and LSAT scores. Grutter believed she was denied admission because of racial discrimination, for the school had adjusted the admission process to favor minorities, made race a “predominant” factor, and were actively demonstrating preferential treatment for some races and not others. Grutter sued the Law School on the grounds that the admissions practice was unconstitutional in that it violated the Equal Protection Clause of the 14th amendment of the Constitution. In contrast, the Michigan Law School argued that it employed racial considerations in its admissions process to manage the level of diversity at the law school, maximize the quality of the education at the school, and to fulfill a “critical mass” of minorities rather than enforcing quotas or percentages (Grutter v. Bollinger).

Although the Lower Federal Court decided in favor of Grutter and ruled that the admission policy was unconstitutional, an appellate court reversed the decision and caused the case to eventually get sent to the Supreme Court in 2003. The Supreme Court established a 5-4 majority decision ruling in favor of the Law School by asserting that the school’s affirmative action policy was constitutional. The Court’s majority opinion was written by Justice O’Connor, and the decision argued that, although the admissions policy of the school facilitated racial discrimination, the process was not unconstitutional or a violation of the 14th amendment because the discrimination fulfilled a “compelling state interest” and thus justified an affirmative action process. The compelling state interest was that the school needed to develop an ethnically diverse and racially mixed student body to enhance the quality of the education, to prepare the students for society and to provide opportunities for minorities (McBride). Additionally, the majority decision argued that the admission process was “narrowly tailored” enough to withstand strict scrutiny because the admission process did not abide by a quota system, the process provided individualized review of all applicants, and the school only used race as a “plus” factor, or one advantage among many other different factors that were also considered for each applicant. However, Justice Thomas disagreed with the majority decision and wrote a dissenting opinion to express his views regarding the contentious issue.

In the dissenting opinion, Justice Thomas provided many reasons for why he disagreed with the decision. Justice Thomas believed that the racial discrimination facilitated by the Law School’s admissions process was unconstitutional because it violated the Equal Protection Clause. The personal constitutional views of Justice Thomas instilled Thomas with the conviction that the Constitution is opposed to all racial classifications for burdens or benefits, as classifications and preferential treatment regarding race demeans and diminishes the quality of our entire society (Thomas). Thomas strongly disagreed with the majority opinion of the Court that the admission process was constitutional because the racial discrimination was justified by a “compelling state interest.” Because most states in the US do not have elite law schools or any law schools, Thomas argued that there is no pressing public necessity or compelling state interest that requires Michigan to have a law school at all, and that there is especially no compelling interest for the Michigan Law School to marginally improve its educational program just to maintain its status as an elite school. Thus, although a law school is beneficial, it does not represent a dire necessity that would justify racial discrimination and the violation of the 14th amendment.

Additionally, Thomas argues that it is not a compelling state interest for Michigan to develop diverse and high quality lawyers who can effectively and successfully represent citizens of Michigan, for the vast majority of Michigan Law School students are not originally from Michigan, and the overwhelming majority of the Law School’s graduates immediately leave the state of Michigan to practice elsewhere (Thomas). Thus, the racial discrimination of the admission process was not compelled by a need to develop representatives for the citizens of Michigan because most of the school’s graduates do not ever represent the citizens of the state.

Thomas also disagreed with the implicit claim that the racial discrimination was required to achieve a diverse student body. The majority opinion of the Court utilized social science studies indicating that diversity can improve the quality of education for schools and students. Although diversity can be beneficial, Thomas addresses other social science studies suggesting that diversity does not necessarily improve the quality of education or the performance levels of the people who attend racially mixed and ethnically diverse schools. Additionally, Thomas also disagrees that racial discrimination was required to obtain diversity among the student body of the law school, for there were other methods that would have enabled the school to develop a diverse campus while not requiring the school to use racial discrimination to achieve that goal. For instance, Thomas mentions the fact that other law schools, including the University of California, have been able to develop diverse student populations without the need to resort to racially discriminatory admissions practices (Thomas). Therefore, the racial preference demonstrated in the admission process of Michigan was unnecessary because there are many other methods by which the school could have achieved a sufficient level of diversity.

Justice Thomas also elaborates on the detrimental effects that affirmative action can have for minorities. In the opinion, Thomas argues that preferential treatment based on race enables minorities to obtain educational and occupational opportunities that they are not prepared to fulfill and that they are unable to complete. He acknowledges that the minority students given preferential treatment are excited about obtaining the degree from the schools, but asserts that they are completely unprepared for the challenge of the curriculum, for the difficulty of the competition, and for the requirements of the legal profession. This lack of preparation causes these students to perform at very inferior levels throughout their careers because they are unqualified to fulfill the obligations of the job.

Additionally, Thomas asserts that affirmative action practices can stimulate a sense of entitlement and resentment. Minorities who have received preferential treatment might become complacent, expect continual preferential treatment and develop an arrogant attitude of superiority. Thomas also explains that affirmative action policies can provoke resentment among other racial groups who are convinced that a given minority was favored because of his race, which causes animosity and distrust within the given institution and within all of society. Additionally, Thomas argues that preferential treatment for a minority diminishes the credibility of the student or professional, for other people will believe that the minority is in the position because of racial considerations and not because of his merit or accomplishments (Thomas). Thus, Thomas believes that affirmative action policies stigmatize and delegitimize people who receive preferential treatment based on race, and that the policies also falsely stigmatize other minorities who reached their accomplishments without any preferential treatment.

This last point was most likely influenced by the personal experiences of Justice Thomas. During and after his confirmation process to become a Supreme Court Justice, Thomas was constantly accused of being given the position because of his race instead of his merits. Although Thomas had achieved great accomplishments and was prepared to be an exceptional Supreme Court Justice, the accusations and criticisms that he received preferential treatment based on his race were constantly perpetuated in an attempt to ruin his credibility and undermine his legitimacy (Kroft). Thus, the lengthy and agonizing confirmation process that Thomas was forced to endure might have influenced his disapproval of affirmative action practices, for he is reluctant to perpetuate the practices and expose other minorities to the same abusive criticism that he unfairly received.

The Grutter v. Bollinger ruling was a significant development that yielded dramatic consequences, as the ruling approved affirmative action programs while also specifying the exact requirements and standards that those programs must adhere to when considering applicants. The majority decision of the Supreme Court expressed reasonable arguments regarding the importance of establishing diverse student bodies to maximize the education of the school and to provide minorities with opportunities to reach excellence. However, the personal constitutional beliefs and the experiences of Justice Thomas caused Thomas to disagree, as in his dissenting opinion Thomas argues that the admissions process was unconstitutional because the racial discrimination was not justified by a compelling state interest, the process was not necessary to achieve diversity, and the affirmative action policies can diminish the performance levels of unprepared minorities and impair the credibility of other more qualified minorities.

Works Cited

"Grutter v. Bollinger." Cornell University Law School. n.d.. http://www.law.cornell.edu/supct/html/02-241.ZS.html

Kroft, Steve. "The Private Clarence Thomas." CBSNews. 2007. http://www.cbsnews.com/video/watch/

McBride, Alex. "Grutter v. Bollinger and Gratz v. Bollinger (2003)." PBS. 1 Dec. 2006 http://www.pbs.org/wnet/supremecourt/future/landmark_grutter.html.

Thomas, Clarence. "Grutter V. Bollinger: Opinion of Thomas, J.." Cornell University Law School. 23 June 2003. http://www.law.cornell.edu/supct/html/02-241.ZX1.html.