In previous years, multiple precedents set out by the U.S Supreme Court have been reassessed by the new conservative majority within the Court. This has resulted in cases being overturned. On June 29, 2023, the U.S Supreme Court overturned Grutter v. Bollinger, 539 U.S. (Hereinafter: Grutter case), in the case Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. (hereinafter: Harvard case), forbidding all forms of race-based discrimination in education admissions decisions. Justice Thomas joined the majority opinion in full but wanted to write a concurring opinion to further argue why all forms of discrimination based on race are obstructing the objectives of the U.S. Constitution – including the so-called positive discrimination also known as affirmative action.
Justice Thomas’ arguments base their ground on the thought that affirmative action is a flagrant breach of the Equal Protection Clause set out in the Fourteenth Amendment to the Constitution of the United States. Equality has been one of the main goals of the U.S. legal system after ratification of the Civil Rights Act and the Fourteenth Amendment in 1866. Looking at the precedents set out by the U.S. Supreme Court after the ratification of the aforementioned statutes, it can be seen that race was meant to be disregarded completely before law. At least that is what Justice Thomas argues. For example in the case Strauder v. West Virginia, 100 U.S. (1880), the Court ruled that the Fourteenth Amendment prohibits “express racial classifications, no matter the race affected”. This is why Justice Thomas views that the Constitution is and always has been colorblind.
Despite the ultimate goal of a colorblind society, race-based discrimination has seemed to be a norm among multiple institutions in the U.S. The Grutter case – since overruled – allowed universities to use race as one of the characteristics defining an applicant in their admissions process and many of them, such as Harvard and University of North Carolina (UNC), did. Undeniably it is difficult to get into the elite universities in the U.S to begin with. Yet Harvard and UNC made the conscious decision to make admission even harder for some by reserving a number of spots solely for black and Hispanic people. As Justice Thomas discusses in his opinion, how can the universities explain the rejection of let’s say a Chinese immigrant because of her skin color? They cannot. That is why Justice Thomas finds it absurd that the application process successfully masked discrimination as something positive and diversity-enhancing while other races, immigrant groups and forms of diversity, like religion, got completely ignored. In his words, these policies “fly in the face of our colorblind Constitution and our Nation’s equality ideal.”
However, the current U.S. Supreme Court applies the principle of strict scrutiny on matters concerning race-based discrimination. To meet the requirements for strict scrutiny, the universities have to have a compelling state interest in order to lawfully contravene the Constitution. Justice Thomas makes it very clear that in the Harvard case neither of the universities had a real reason to discriminate applicants based on race. He prefaces this by describing Harvard’s reasonings, e.g. the positive effects of diversity, as “too vague” and more social goals rather than educational. Justice Thomas goes as far as stating that he believes no university is ever going to meet the standard of strict scrutiny in hopes of discriminating based on race any longer.
Justice Thomas not only sees the actions of the universities but the whole idea of affirmative action as problematic. Throughout the history of the world and especially the U.S., race, more specifically racial segregation, has played a big part in society. The consequences have never been good. From the Independence of the United States to the ratification of Thirteenth Amendment in 1865, a number of Africans and African Americans were enslaved. From the 1800’s up until the Brown v. Board of Education, 347 U.S. decision in 1954, segregation within educational institutions was allowed – and the list goes on. Even today, Justice Jackson argues that acts of “positive discrimination” towards for example black people cause more harm than good for all races. With affirmative action, every other race than black is forced to have their rights diminished. Yes, black people might get into elite schools easier, but in the process are exposed to unfair stereotyping and prejudices. Moreover, these unjust admissions lead to less success academically simply because the students were admitted based on their skin color, not skills. This proves that the action of favoring a specific race, whether the intent is positive or negative, inevitably puts some other race, and most likely also the favored race, to a more unfortunate position.
In conclusion, Justice Thomas believes that the classification of people based on the color of their skin yields no positive outcomes. His concurring opinion emphasizes his view that affirmative action is fundamentally inconsistent with the purposes of a truly equal and colorblind society as envisioned in the Constitution. That is why he wishes that, aligning with the principles set out in the Declaration of Independence and the Constitution of the U.S, everyone would be seen as individuals and equal to one another, especially before the law.
Team Harvard, Case Argumentation Analysis