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Clarence Thomas compares Affirmative Action policies to segregation

Justice Clarence Thomas joined in a majority opinion today sending the Supreme Court's affirmative action case back to a lower court.

But in a concurring opinion on Fisher v. University of Texas at Austin, Thomas added his own take, arguing against affirmative action policies and comparing the school's justifications to those of Jim Crow-era segregationists.

Thomas says that the “University echoes the hollow justifications advanced by the segregationists" and that there "is no principled distinction" between the two.

It's a position he has staked out before; particularly in a 2003 case on the University of Michigan's affirmative action policies.

Here's a sampling of what Thomas said in today's opinion:

* “Finally, while the University admits that racial discrimination in admissions is not ideal, it asserts that it is a temporary necessity because of the enduring race consciousness of our society. Yet again, the University echoes the hollow justifications advanced by the segregationists.”

* “The University’s arguments today are no more persuasive than they were 60 years ago. … There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.”

* “The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.”

* “Unfortunately for the University, the educational benefits flowing from student body diversity—assuming they exist—hardly qualify as a compelling state interest. Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950’s, but emphatically rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then ... the alleged educational benefits of diversity cannot justify racial discrimination today.”

* “It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society. … The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks. … Indeed, no court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T.  Washington, Thurgood Marshall, Martin Luther King, Jr. and other prominent leaders. Likewise, the University’s racial discrimination cannot be justified on the ground that it will produce better leaders.”

* “The University also asserts that student body diversity improves interracial relations. … In this argument, too, the University repeats arguments once marshaled in support of segregation. … We flatly rejected this line of arguments in McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637 (1950), where we held that segregation would be unconstitutional even if white students never tolerated blacks. … It is, thus, entirely irrelevant whether the University’s racial discrimination increases or decreases tolerance.”


Aaron Blake covers national politics and writes regularly for The Fix.



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Aaron Blake · June 24, 2013

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