BY MARK S. JAMES
In section II of his concurring opinion in Students for Fair Admissions v. Harvard, Justice Clarence Thomas seems to suggest that affirmative action can be justified for elite colleges and universities, such as Harvard and the University of North Carolina, if they can explain how their past discriminatory treatment against people of color, Black, Latinx, and Indigenous people in particular has contributed to the conditions that we continue to face today.
In subsection B, Thomas claims that affirmative action goals must be measurable. After observing that both universities were perfectly willing to participate in racial discrimination against people of color before affirmative action, he remarks that their “histories hardly recommend them as trustworthy arbiters of whether racial discrimination is necessary to achieve educational goals” (28). He goes on to say that “universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence,” though he “doubt[s] any will be able to do so” (29).
In subsection C, he elaborates further: “Our precedents explicitly require that any attempt to compensate victims of past governmental discrimination must be concrete and traceable to the de jure segregated system, which must have some discrete and continuing discriminatory effect that warrants a present remedy” (31). Therefore, Harvard and the University of North Carolina’s affirmative action efforts fail to pass muster because neither of them “have even attempted to explain how their current racially discriminatory programs [affirmative action admissions policies] are even remotely traceable to their past discriminatory conduct.” In other words, rather than anticipate the good they might do in the future by including students of color, these colleges and universities would be better served by taking stock of the harm they have caused in the past by excluding them.
Of course, Justice Thomas’s insistence on the “colorblind university” suggests that he does not take seriously the color-conscious conversations around reparations taking place across the country, but it seems to me that he has thrown the gauntlet at the feet of those who do. It is also an invitation for those of us who have not taken those conversations seriously enough to take them more seriously as well. There has been a great deal of research on and books and articles published about the ways in which some elite colleges and universities profited directly from slavery while others profited indirectly, most notably Craig Steven Wilder’s Ebony and Ivy: Race, Slavery, and the Troubled History of America’s Universities.
Many of these institutions also provided the intellectual and ideological framework supporting Jim Crow segregation up to the Civil Rights era, a topic explored in texts like John David Smith’s The Dunning School: Historians, Race, and the Meaning of Reconstruction. The Dunning School was named after the professor at Columbia, William Archibald Dunning, whose characterization of Reconstruction as an abysmal failure and his romance of the antebellum South provided the intellectual cover for the likes of Thomas Dixon, whose books inspired D. W. Griffith’s blockbuster film The Birth of A Nation, as well as Margaret Mitchell, who penned Gone with the Wind. Her bestselling novel was also made into a blockbuster film that many critics considered the greatest film of all time until recently. We have only begun to reckon with the damage that has been done by institutions that were indeed “alive” and benefitted from slavery and Jim Crow segregation, and now Justice Thomas may have given that work new urgency and legitimacy.
It is somewhat ironic to think that Justice Thomas may have more in common with the likes of Ariana González Stokas, whose book Reparative Universities comes just in time for this very conversation, than he or many of us would have supposed before he wrote his opinion.
Mark S. James is associate professor of English at Molloy University, president of Molloy’s AAUP chapter, a member of the AAUP’s Committee A on Academic Freedom and Tenure, and a contributing editor for Academe Blog.
