The singular Black male on the United States Supreme Court made one of his most hypocritical decisions to date, by siding with the Court’s conservatives and ruling to effectively eliminate diversity inclusion programs in higher education, something he himself benefited from decades prior. Justice Clarence Thomas has written opinions adverse to people of color, women, and historically marginalized communities, but On June 29, 2023, Justice Thomas went beyond the traditional conservative directive and agreed with the majority to ban Affirmative Action policies at Harvard Law School–the same school he was admitted to in 1971 after they employed a new policy to diversify their student body (Affirmative Action). Thomas instead chose to attend Yale Law School after they too implemented an even more aggressive Affirmative Action policy to increase their student diversity by 10%. Consider the depth of this scenario. The same individual who sits in one of the most powerful positions in the known world was provided this opportunity due to the very same policy he ruled against. Multiple professors and a law school dean from Yale Law have all confirmed Thomas’ entry into the law school was during their hyper, race-conscious Affirmative Action admissions policy.
Before I go further, allow me to illuminate a few fallacies and misnomers about Affirmative Action with the precision you deserve. Due to propaganda and intentional misrepresentation, many believe Affirmative Action in higher education is a stoic policy, with mandated implementation protocols and restrictive government adherence procedures. This is simply not true. Affirmative Action is more of a “catch-all” phrase to describe a variety of diversity inclusion policies set forth by the institution to enhance diversity and the overall experience of each student. Before this ruling, each institution was able to set this criterion based on its desired diversification outcome, which typically aligned with the spirit of the university and its managing board. Another issue that must be addressed is the “lesser qualified” debate launched primarily by conservatives, bad-faith actors, and the ignorant. Colleges and universities create standards for admissions, and these standards do not deviate due to the racial background of the applicant. The factor of race is only considered after an applicant has met the standard set by the office of admissions, which means each student is in fact qualified based on academic, leadership, and extracurricular activities standards. And the one talking point that has conservatives in orgasmic ecstasy centers around misleading surveys and headlines that read, “Most Americans Are Against Affirmative Action.” The truth is most Americans are not against Affirmative Action, which is evident when polling the same group. The very studies cited by opposers of Affirmative Action also show that when you take away the phrase “Affirmative Action” and replace it with “diversity” or similar verbiage, all of a sudden, a majority of Americans agree that each institution should implement Affirmative Action policies. Why the disconnect? Simple… Conservatives have successfully mislabeled and misbranded the term Affirmative Action, but most Americans agree with the spirit of its application, which is the diversification of colleges across the country. Remember, this is only necessary due to the overt and covert racism demonstrated against Black students for decades, effectively leaving them out of higher education opportunities. The system was not perfect, but it’s better than nothing, and that’s what we basically have now… nothing.
The policy, which was aimed to help increase minority college admissions, was prohibited after SCOTUS was asked to consider if colleges and universities should no longer be able to take race into account when considering applicants. Many institutions used the policy for decades to ensure the diversity and enrichment of the overall college experience. As a university professor and administrator, I am well aware of the richness diversity can bring to the overall experience of a student as they prepare for the world. Keep in mind, SCOTUS could have made a decision that allowed for private institutions to retain their right to utilize their established diversity protocols while disallowing the practice among public universities, which would have still been absent of proper adherence to equitable principles, but at least congruent with rights typically associated with private organizations. Instead, SCOTUS threw judicial nuance aside to rule in a manner that provides the legal structure through federal case law for the elimination of everything we have fought for in the space of diversity and inclusion in America. More about that later…
Another glaring irony from Justice Thomas stems from his own words years ago, where he transparently talked about his experience in the Catholic Church when he wanted to join the priesthood but was met with the seemingly immovable barriers of racism in the church. He decided to take up a career in law where he could effect policy changes. Thomas, after completing law school and well into his career, was made Assistant Secretary in the Civil Rights Division of the U.S. Department of Education, which required a keen focus and expertise in spotting problems related to discrimination and providing remedies when racial discrimination occurred within the context and jurisdiction of his role. Additionally, before anyone could have foreseen Thomas becoming a United States Supreme Court Justice, he was appointed as Chairman of the Equal Opportunity Employment Agency by then-US President Ronald Reagan. Another position which required insight and an in-depth understanding of discriminatory practices in American workplaces and effective leadership to overcome these societal ills.
Despite the benefits and privileges Justice Thomas has enjoyed throughout his academic and professional career, he wrote a 58-page concurrence to Justice John Roberts’s summary opinion, which many called “unnecessary.” Justice Thomas, who benefited from a race-conscious admissions policy when entering Yale Law School, said, in part, “The foundational policies of affirmative action fly in the face of our colorblind Constitution and our Nation’s equality ideal. In short, they are plainly and boldly unconstitutional.”
The ‘Justices’ who struck down Affirmative Action based their opinion on the 14th Amendment–which essentially protects equality, but this ruling is adverse to the spirit of that notion, which should be rooted in equitable outcomes, which take into consideration the historical injustices that have crippled hard-working generations and their authentic access to the “American Dream.”
While this ruling effectively takes another tool away from the proponents of diversity in our social construct, some colleges and universities will not be adversely affected due to the comparatively lower percentage of colleges that engage in true competitive entry and those that do not. We also have empirical evidence that clearly demonstrates when these programs are eliminated within a state construct, Black enrollment decreases significantly, which is a loss not just for the Black community, but also for the American economy as a whole. Higher education opportunities equate to higher income … higher income equates to higher tax revue and decreased dependence on taxpayer-funded social programs. Even though this is a bad ruling by SCOTUS and effectively provides a gateway to decrease Black collegiate enrollment, it does something worse … far worse. SCOTUS’s ruling lays the judicial foundation and provides the legal framework for arguments to be made that can effectively eliminate all diversity programs in the United States of America. The logic of the court states we are a race-blind country, which is contrary to truth, history, and the reality of now, which was eloquently highlighted by the dissent.
For my progressive allies who are for diversity inclusion but did not like the implementation protocols of certain Affirmative Action policies and agreed with SCOTUS’s ruling, keep in mind, this was never about colleges only, but rather setting the foundation for future rulings to ban diversity efforts in workplaces, public institutions, and beyond, which required either a new federal law or in this case a federal case law, i.e. the ruling at hand. Even in Justice Roberts’ majority opinion, he cited that institutions of higher learning can still allow a student applicant to describe their experience with race, and the “experience” can be used as a factor for admissions, which simply means universities who want to operate in good faith and keep diversity protocols in place will, those who do not, won’t. To champion regressive policies because of poor implementation would be akin to agreeing with those who said Trump won the 2020 election because election machines were “rigged,” since a handful of voter machines malfunctioned. The logic doesn’t fit.
We are fighting against the very DNA of America. A nation founded on principles that said you can own another human being, and legally rape and kill enslaved children, women, and men. It is now nature versus nurture. I still believe we can nurture America from the darkness of its birth, provide effective solutions that resolve real problems for everyday people, and stand against the political elite to get it done right. Keep in mind, the US Constitution was not written for the people, nor by the people… it was written by wealthy white men and for wealthy white men. Do you think it’s a coincidence that the vast majority of members of Congress are white, male, and millionaires? If you were a white male who did not own property, or a woman, or simply a person of color, you were excluded from voting, running for office, or even holding a position of public trust upon the founding of this nation. My question to you is, what group do you align with? After you answer that question, I challenge you to work toward a better national policy and a better country that can rise to every occasion, not because of antiquated documents written by even more antiquated men, but because of the strength of our resolve, knowing that there is but one inalienable truth, we are all truly equal.
The game of policy and politics must be approached like a chess game, but too many Democrats are playing checkers. In the game of checkers, you use power to gain position, but in chess, you use position to gain power.
Rashad Richey is president of rolling out, a national multimedia broadcaster, and university professor. The opinions expressed are solely his own.