Clarence Thomas Unintentionally Opened the Door to a New Type of Affirmative Action

The Supreme Court’s decision prohibiting affirmative action in university admissions was long expected, but one aspect of the court’s ruling in Students for Fair Admissions v. Harvard has been seriously overlooked: If the logic of Justice Clarence Thomas’ concurring opinion were actually followed by the court, then affirmative action for the vast majority of Black Americans would have been saved.

In his concurrence in that case, Thomas rejected the idea that the framers of the 14th Amendment accepted race-conscious policy with programs such as the Freedmen’s Bureau. Even though that agency was focused on services for newly freed slaves, all of whom were Black, Thomas argued:

The 1866 Freedmen’s Bureau Act then expanded upon the prior year’s law, authorizing the Bureau to care for all loyal refugees and freedmen. … Importantly, however, the Acts applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large. And, because “not all blacks in the United States were former slaves,” “ ‘freedman’ ” was a decidedly underinclusive proxy for race.

As the Atlantic’s Adam Serwer has pointed out, such logic is nonsense. The members of Congress who passed the Freedmen’s Bureau Act clearly understood that it was designed for Black former slaves. Those who opposed the act objected to it precisely on the grounds that it was race-conscious.

But let us take Thomas at his word. If a program designed overwhelmingly for former slaves passes constitutional muster because it is “formally race-neutral,” then so would a program for the descendants of former slaves.

As Thomas might note, such a program would be “decidedly underinclusive.” Not every Black American would qualify. Barack Obama, for example, had no ancestors who were former slaves: his father was from Kenya. The same would be true for Rep. Ilhan Omar, who was born in Somalia. Indeed, recently, many Black students have objected to what they see as the overrepresentation of immigrant children among elite universities’ Black populations. They demand greater representation of “Generational African American” students. Last year, a reparations task force in California determined that any reparations plan for the state would require someone to trace their lineage to enslaved ancestors, so Black immigrants would not be eligible. The same could theoretically be true for college admissions.

Critically, the constitutionality of such a program would not depend simply upon a few sentences in Thomas’ concurrence. Right-wing jurisprudence has long rejected the theory of “disparate impact,” i.e., the notion that something violates the Constitution merely because of discriminatory effect. So the mere fact that remedying the impacts of slavery just happens to benefit a subset of Black Americans does not give rise to an inference of invidious discrimination.

Universities would undertake such a program not to generate diversity, but rather as a way to help compensate for historical injustice. As critical American institutions, they would thus be effecting important public values. Earlier Supreme Court decisions, such as Regents of the University of California v. Bakke, forbade remedying past discrimination as a justification for race-conscious policies. But that would not apply here. Compensating descendants of American enslaved people would be, as Thomas insists, race-neutral. Indeed, depending upon how it would be structured, it could make eligible all descendants of slavery—including, potentially, the 50 million currently enslaved people and their progeny, most of whom (30 million) come from the Asia/Pacific region, with 6 million from Europe and Central Asia.

It is thus not precisely clear how an admissions program for the descendants of formerly enslaved people would shake out because it depends upon specific policies. What about someone—such as Vice President Kamala Harris—who is descended not from American slaves but from ancestors who suffered under what was arguably even more brutal Caribbean slavery? One can make good arguments both ways as to whether they should be included. But in any event, a program for the descendants of slaves would be unquestionably constitutional under Clarence Thomas’ and right-wing jurisprudence’s own logic concerning race neutrality.

Implementation would take time, because there would have to be provision for applicants to provide at least some evidence of genealogy and descent. But this is just the sort of thing that universities—especially wealthy universities—could help provide. Much census data is now online. Reasonable presumptions could also be employed: For example, anyone with Black ancestors living in the American South during the latter part of the 19th or early 20th century could be assumed to be the descendant of enslaved people.

Such a program would have particular purchase for older, Ivy League institutions, such as Harvard College, a co-defendant in the Supreme Court case. These schools generated much of their early income from slavery and the slave trade. Georgetown University has acknowledged the role of its founding Jesuits in the slave trade. The other respondent in the SFFA cases, the University of North Carolina, was founded in 1789, the creation of a state whose economy depended overwhelmingly upon slavery. It stands to reason that these universities would have a particularly strong case for offering the descendants of enslaved people some additional consideration in admissions.

There are two clear drawbacks to such a plan. First, this program would not include Latinos, who, while subordinated and discriminated against, were not enslaved. This would risk disrupting the Black-Brown political coalition in support of affirmative action. But not only is this coalition weak (racial preferences poll poorly, especially among Latinos), there is only so much a policy could achieve under the Supreme Court restrictions handed down in the SFFA cases. Chief Justice John Roberts’ majority opinion for the court stressed the legitimacy of individuals to discuss in their applications their experiences with prejudice and discrimination, and that might be the best route for Latinos and members of other historically marginalized minority groups. Alternatively, we can return to the original Freedmen’s Bureau example: As Thomas pointed out in his argument regarding race neutrality, that bureau was officially known as the Bureau of Freedmen, Refugees, and Abandoned Lands. Thus, those who are refugees or asylees, or otherwise fleeing political persecution (or their descendants) could also be made eligible. We should not facilely equate America’s Latino population with immigrants, but making refugees beneficiaries of admissions preferences would include many of the most vulnerable people on the planet.

Second, this is a Supreme Court that has not, to put it mildly, placed a great emphasis on intellectual consistency. Roberts in particular has proved eager to use the newly invented “major questions doctrine” to strike down environmental regulations on the grounds that Congress could delegate such authority to the executive, but has had little trouble delegating vast powers to a Republican president to ban travelers from Muslim countries. So, we cannot expect the court to uphold this new policy, even if it is demanded by the conservatives’ own reasoning.

But if the court were to strike down such a policy, it would be frankly admitting that, while formally race-neutral policies that benefit white Americans, such as legacy admissions, are fine constitutionally, formally race-neutral policies that benefit Black Americans, such as slavery descendants’ admissions, are not. It would thus be explicitly defending racial subordination as a matter of constitutional policy. If the Supreme Court were to go down that path, it should not be surprised when most Americans regard its institutional credibility, already on life support, as gone for good.

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