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When Clarence Thomas started his first semester of law school during the summer of 1971, a familiar fear set over him: He knew he could succeed academically, but he was intimidated by his new surroundings on Yale’s tree-lined urban campus — and also terrified to fail.
During his first week of classes, he wondered how his peers were already comfortably decoding legal doctrine and whether he’d ever be able to catch up, he would later recount in his memoir My Grandfather’s Son. Thomas spent part of his childhood in a rural Georgia community, where he lived in a shack, fetched water from the woods in lard buckets, and slept in a chair for a year when he was 6 years old. He questioned his abilities not because he was Black, but because he had grown up poor.
In New Haven, he was “among the elite,” he wrote, and “no amount of striving” would make him one of them. Though he was eager to prove that he could achieve against the odds, just as he had done in the seminary and at College of the Holy Cross, he soon came to believe that his academic accomplishments were clouded by something beyond his control: racial preference, or, as we know it today, affirmative action.
By the time Thomas set foot on Yale’s Gothic-inspired grounds, affirmative action was “a fact of life at American colleges and universities,” he wrote, filling institutions with marginalized students and faculty in part to correct historical exclusionary practices in education and employment. Though it is unknown how many institutions used affirmative action in admissions at the time, Yale Law School certainly did. It began using race-based preference in admissions in 1971, setting aside up to 10 percent of seats in each class for students of color. When this produced what the former dean of the law school called “remarkably weak” students, the university devised standards on which to judge the pool of students of color separately, while taking into account typical benchmarks — undergraduate grades, LSAT scores, and the quality of an applicant’s undergraduate institution.
Thomas, admitted under these standards, was one of 12 Black students out of about 160 students admitted for the class of 1974. He publicly supported affirmative action as a member of the Black Law Students’ Association, which urged the school to recruit more Black faculty and students, but the pain of stigmatization privately shifted his views. “As much as it stung to be told that I’d done well in the seminary despite my race, it was far worse to feel that I was now at Yale because of it,” he would write. He believed that economically disadvantaged students were in a position to be helped through affirmative action; after all, legacy students at Yale got preferential treatment in admissions. But disadvantage couldn’t be assumed solely on the basis of race, he thought.
Thomas began to believe that he was paying a high price for affirmative action, a conviction that followed him all the way to his current position as the longest-serving justice on the Supreme Court. “Every time you walked into a law class at Yale it was like having a monkey jump down on your back from the Gothic arches,” he told a reporter in 1980. “The professors and the students resented your very presence.” Thomas believed that affirmative action made him a test dummy for integration and the liberal paternalism of Northern whites, so much so that he has mocked the value of his degree altogether. After struggling to get a job after graduation — which he attributes in his memoir to the notion that “a law degree from Yale meant one thing for white graduates and another for blacks” — he affixed a 15-cent price sticker from a cigar box to the frame of his law degree to remind himself of the “mistake” he made. Instead of hanging the degree on the wall of his Supreme Court office, he keeps it locked away in the basement of his Virginia home.
Thomas’s tangled relationship with affirmative action is emblematic of a larger debate that’s captivated America for decades. Since schools began using race-conscious policies, the nation has seen waves of campus protests, op-eds, public panel discussions and roundtables, talk show debates, congressional hearings and bills, broadcast spats, presidential and congressional investigations, ballot measures, magazine spreads, radio segments, documentaries, and lawsuits — all about affirmative action.
As Thomas’s opposition to racial preferences grew, as is evident in his various Supreme Court dissents, the intensity of that public discourse ebbed and flowed — and sometimes completely boiled over. Now the Court, swaying closer toward Thomas’s long-held views with the appointment of each new conservative justice, may well have ended the debate with its landmark ruling effectively ending race-conscious affirmative action at Harvard University and the University of North Carolina Chapel Hill — a decision that has the potential to upend higher education admissions across the nation and transform the makeup of campuses across the country.
In his concurring opinion, Thomas doubled down on his long-held views, writing: “I have long believed that large racial preferences in college admissions ‘stamp [Black and Hispanic people] with a badge of inferiority.’” He added: “Consequently, ‘[w]hen blacks and, now, Hispanics take positions in the highest places of government, industry, or academia, it is an open question ... whether their skin color played a part in their advancement.’”
In many ways, Thomas’s rejection of affirmative action, and the debates about the programs that began just as he entered law school, are forerunners to today’s backlash to diversity, equity, and inclusion initiatives, the divisions over how to teach American history, and the right-wing attack on critical race theory. The affirmative action debate has long tapped into resentments and anxieties that beset the American electorate. Though the policy directly affects a relatively small number of people at only a few higher education institutions across the country, it draws disproportionate attention, personifying deeply moral, political, institutional, economic, and cultural contradictions.
On the surface, the cultural skirmishes have focused on circular questions, like whether affirmative action policies count as preferential treatment, the difference between quotas and diversity goals, whether reverse discrimination exists, and whether affirmative action is merely a stopgap measure or here to stay. Below the surface, the enduring debate gets at something deeper, something that seems to nag even at Thomas, an affirmative action beneficiary: In America’s fractured society, what does fairness look like?
Affirmative action was hobbled from the start.
Though political leaders were well-intentioned, they never clearly defined affirmative action, leaving the door open to early resistance. When President John F. Kennedy signed Executive Order 10925 in 1961, encouraging affirmative action in employment, he acknowledged that deep-rooted structural oppression was the cause of modern-day inequality. Two years later, shaken by the bombings and riots in Birmingham, Alabama, Kennedy pleaded with university leadership to further “expand opportunities for Negroes at all levels of the educational system” as a way of defusing racial tensions. He also embraced the idea that equal opportunity for education, bolstered by Brown v. Board of Education, wasn’t enough if Black people couldn’t apply and be admitted. “Young people and adults alike who have been disadvantaged need special programs in both general and vocational education if they are to be ready for further formal education or for employment,” he wrote. “The main task, of course, has to be carried out by state and local educational systems and by public and private institutions.” But he never offered specific solutions. His successor, Lyndon B. Johnson, carried on the message, proclaiming in a 1965 speech that “we seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.”
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Affirmative action was meant to increase equality by countering historical imbalances. Those who were at a disadvantage due to slavery, Jim Crow, and racial discrimination would be brought up to the starting line to better compete with those who were privileged. Following Kennedy’s original mandate, university presidents by the late 1960s took steps to admit students and hire faculty of color, also making room for white women in the process.
Almost immediately, culture clashes challenged these efforts, continuing over the following decade. One white man who filed a lawsuit against the Virginia Commonwealth University for alleged discrimination on the basis of sex told the New York Times in 1977, “For a while in the 60’s, we were afraid to say what we believed. … All conscientious whites wrestled with white guilt, and reverse discrimination was the vehicle to get rid of that guilt. Now we can speak our minds.”
The conflict was drawn. On one side of the aisle, supporters of affirmative action decided it was up to schools to reimagine ways of measuring academic merit and expand the pool of people who were considered for admission. On the other, the opposition believed that the white students applying to college weren’t rabid segregationists and that it was wrong to hold them accountable for the sins of their forefathers. Affirmative action, these critics claimed, amounted to a new form of racial discrimination, one that moved the country further from a supposed colorblind ideal. The 1974 case DeFunis v. Odegaard led a trial court to require that the University of Washington Law School admit a white man after he was rejected despite having higher test scores than some applicants of color — and put affirmative action on the legal radar. Four years later, in Regents of the University of California v. Bakke, the Supreme Court ordered the university’s medical school to admit Allan Bakke after he was rejected twice, seemingly as a result of the school’s 16-seat quota system for applicants of color that the Court deemed illegal, dealing affirmative action its first blow. But the policy itself, albeit weakened, managed to hold.
“These cases launched and fired up the culture wars of the 1970s,” said Anthony S. Chen, a sociologist at Northwestern University. “The Supreme Court acted like a sieve, taking the rationales and policies that grew out of the reformist energies in the 1960s and sorted them. They determined which were permissible and which weren’t.”
More than 40 years later, these clashes still haven’t been resolved — some Americans aren’t pleased with where the Court has left affirmative action. The two cases now before the justices are only the latest on a continuum of challenges in which plaintiffs say the law discriminates against them. The lawsuit against Harvard in Students for Fair Admissions v. Presidents and Fellows of Harvard College claimed that affirmative action harms Asian American students because Harvard attempts to design or “balance” the racial makeup of every class — designing a class that’s about half white, 20 percent Asian, 12 to 15 percent Hispanic, and a remainder of students who are Black, mixed race, Native American, or other groups. The plaintiffs said achieving that calculus has led the university to penalize Asian applicants in the “personal” category despite high test scores, grades, and various extracurricular activities. The UNC case is similar but argues that the practice violates both Title VI and the guarantee of equal protection under the 14th Amendment.
Edward Blum, the white conservative activist behind both cases, demanded a college admissions process that evaluates students without factors such as race or ethnicity, to get back to what he calls the “original vision of the civil-rights movement.”
“Our nation cannot remedy past discrimination and racial preferences with new discrimination and different racial preferences,” Blum has said in a statement. Ultimately, the Court’s opinion, with the six conservative justices voting that Harvard and UNC’s policies were in violation the 14th Amendment, echoed this very view.
The clashes, activism, and extensive discussion around affirmative action have helped keep it in motion. The fight, however, began to feel different. “With litigation in the 1970s, there were no conservative public interest law firms hunting around for plaintiffs to sue universities and colleges,” said Chen. By the 1980s, affirmative action, in both employment and educational contexts, was again a flashpoint in the culture wars, and by the 1990s, litigation against the policy in higher education started up again, this time with the muscle of a cadre of conservative attorneys who had come up under Presidents Reagan and George H.W. Bush. The ’90s also brought the rise of the Center for Individual Rights, an organization that prided itself on challenging affirmative action on behalf of white plaintiffs.
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Since its founding in 1989, much of the CIR’s efforts were aimed at affirmative action to “get the government out of the business of granting preferential treatment to individuals based on their race or sex.” In 1996, the CIR landed a victory in the case Hopwood v. Texas, the first successful legal challenge of a school’s affirmative action policy since Bakke. Because the Supreme Court declined to review the case, the Fifth Circuit’s opinion that race couldn’t be used as a factor in admissions at the University of Texas School of Law — delivered by judges appointed by Presidents Reagan and George H.W. Bush — became the law of the land in Louisiana, Mississippi, and Texas.
The case brought affirmative action back into the legal system and sparked fears about the resegregation of higher education and the deprioritization of diversity. Faculty and students protested. Conservatives rejoiced. One of the three plaintiffs, Cheryl Hopwood, a white woman, told Rolling Stone in 1995 that “affirmative action should be used to help disadvantaged people of whatever background.” Regarded as the “perfect plaintiff,” Hopwood was admitted to Princeton as an undergraduate but was too poor to attend, so she opted to work part-time and attend community college. Her father died when she was young, and she faced other difficult circumstances. When she applied to the University of Texas’s law school, she was shut out. “You can find injustice anywhere. The fact that I have one severely handicapped child and another one died is an injustice. But nobody’s helping me,” she told the magazine.
The moment also drew attention to fissures among African Americans. In 1991, Stephen Carter, a Black Yale Law School professor, published Reflections of an Affirmative Action Baby, a memoir that attempted to capture the essence of the affirmative action culture war and remake the debate.
Carter asserted that he would not have accomplished his career achievements if not for receiving racial preference in professional school admissions. “I call us the affirmative action babies. I know that this term is sometimes used pejoratively, but it is my intention to invert that meaning, to embrace that term, not reject it,” Carter wrote.
Carter, however, did not counter Justice Thomas’s accounts of how tense it was for Black beneficiaries of affirmative action on Yale’s campus in the 1970s. After the Bakke decision, Carter wrote, “Everywhere we turned, someone seemed to be pointing at us and saying, ‘You don’t belong here.’” He and his fellow classmates looked around and saw an academic world that seemed to be doing its best to get rid of them.
By the ’90s, after a decade in the classroom, Carter was worried that the young students of color in his classes could become the last members of the affirmative action generation. He noticed, too, that affirmative action was moving away from its original meaning — “a provision of opportunities for developing talent” — to “a tool for representing the ‘points of view’” of excluded groups. With Bakke, the Court allowed affirmative action, but only to achieve a student body with diverse perspectives that would benefit everyone.
Carter also tried to bridge the divide to prominent Black dissenters who thought self-determination was all Black people needed to succeed, men whom he believed had valid criticisms of the policy but were being publicly castigated as “race traitors” or “conservatives” for their views. Those men included Black conservative economist Thomas Sowell, who authored the 1975 book Affirmative Action Reconsidered: Was It Necessary in Academia? — and who has been a major influence on Thomas’s jurisprudence.
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“You move from Clarence Thomas, who felt undermined and who internalized traditional arguments against affirmative action, to Steven Carter, who felt that Black students should do everything they can to demonstrate to whites that we work harder than anybody. Most of us worked hard because we were going to work hard but also because we wanted to push back against stereotypes,” said Luke Charles Harris, a professor of political science at Vassar who was a year behind Thomas at Yale Law School and calls himself a typical first-generation beneficiary of the program. “The public debate about affirmative action during that time colored the perspectives of even some of the beneficiaries,” Harris said. “But there’s never been a measure to integrate people of color into American society that wasn’t made controversial. Anything that brings us into these environments, there’s going to be pushback — even in situations where we continue to be underrepresented.”
The debate kept going, in magazines, newspapers, and all over television. In October 1995, the conservative Weekly Standard published an editorial expressing dismay that the energy to kill affirmative action had stalled that year. “Expect to hear that affirmative action is alive and well. But understand that what you’ll be hearing is wrong. Affirmative action is still dying.” the magazine’s editorial board wrote. Sure enough, the states of California and Washington would eventually ban it by public referendum fanned by the culture wars and conservative gadflies, and cases filed in that era would culminate in the Supreme Court further gutting the policy.
Above all, many pointed out that the affirmative action debate had become political theater, with leaders like President Bill Clinton using it to “foment racial and gender rancor,” one Newsweek article argued.
Research from the time offers some insight into why Americans have been so divided over the issue. Researchers Lee Sigelman and Susan Welch conducted surveys throughout the ’80s about feelings toward racial preferences. In a 1984 survey, only 23 percent of Black respondents and 10 percent of white respondents agreed with the idea that Black people and women should receive “preferential treatment in getting jobs and places in college as opposed to mainly considering ability determined by test scores.” In 1988, a survey question that was phrased differently found different results. Asked whether they favored “affirmative action programs in employment for Blacks, provided there are no rigid quotas,” 78 percent of Black respondents and 73 percent of white respondents said “yes.” These mixed responses show that Americans haven’t always had the same understanding of what affirmative action is.
In 1999, Jennifer Hochschild, a professor at Harvard, wrote in “Affirmative Action as Culture War’’ that “some Americans see strong forms of affirmative action as violating the values of individualism, equal opportunity, and meritocracy that instantiate the American dream” while others see them as “the only lever available to pry open the hypocritical claim of purported equality but actual racial domination that characterizes ‘Amerikka.’” Back then, Hochschild argued that affirmative action is “precious as a political weapon in a broader cultural war about what America stands for.”
Today, she believes that in an increasingly diversified America, affirmative action is no longer just a political tool. “It has kept resurfacing because it’s a relatively safe space for people to make arguments that they genuinely believe,” she said. “There’s a huge systemic structural underlay, and affirmative action is a tiny little pinprick that we focus our attention on.”
The morning of Halloween 2022, Justice Thomas cleared his throat and began peppering Ryan Park, the lawyer for the University of North Carolina and the state’s solicitor general, with questions about diversity during oral arguments. Thomas, who has a reputation for staying silent during oral arguments, was chatty that day.
“Mr. Park, I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone,” Thomas said. What, he wanted to know, did it mean on the University of North Carolina campus? And what exactly were the educational benefits?
Park, a Korean American who was himself a Harvard Law School graduate and once a law clerk for Ruth Bader Ginsburg, defended the school’s policy this way: Diversity at UNC was achieved by a “set of criteria that extends to all different backgrounds and perspectives and not solely limited to race.” Under this definition, UNC has recruited and enrolled rural North Carolinians, for example. In UNC’s last incoming class, four out of every 10 students who stepped onto campus were from rural North Carolina and one out of every 12 students has a military affiliation. This diversity had “real and meaningful educational benefits,” Park argued, citing evidence from Students for Fair Admissions, the very organization that had filed both the UNC and Harvard cases in an attempt to gut affirmative action for good. Diversity, he concluded, leads to a “deeper and richer learning environment” and “more creative thinking and exchange of ideas,” and has “reduced bias between people of different backgrounds and not solely for racial backgrounds.”
“But you still haven’t given me the educational benefits,” Thomas retorted. “I didn’t go to racially diverse schools, but there were educational benefits. And I’d like you to tell me expressly, when a parent sends a kid to college, that they don’t necessarily send them there to have fun or feel good or anything like that; they send them there to learn physics or chemistry or whatever they’re studying. So tell me what the educational benefits are.”
Park pointed to “rigorous peer-reviewed” literature to argue that racially diverse groups perform at a higher level because it “reduces group think and people have longer and more sustained disagreement, and that leads to a more efficient outcome.”
Thomas wasn’t buying it. “Well, I guess I don’t put much stock in that because I’ve heard similar arguments in favor of segregation, too,” he said, before abruptly moving on to another question.
Despite Thomas’s dismissiveness, the educational benefits are well-documented. The seminal book The Shape of the River by the late William G. Bowen, a former Princeton president, and former Harvard president Derek Bok, has examined the impact of affirmative action during its first three decades on students who probably benefited, and found that the students had better life outcomes — they were more likely to graduate from college, earn professional degrees, and have higher incomes — than peers who went to less competitive colleges and probably didn’t benefit from affirmative action.
For the broader student body, particularly white students of higher socioeconomic status, affirmative action has been proven to foster positive racial attitudes toward marginalized groups, help them develop stronger leadership skills, and make them likelier to engage civically after they graduate.
The diversity rationale was the final leg upon which affirmative action stands. “The Supreme Court shifted the conversation from restorative justice to diversity, diversity predominantly in racial and ethnic terms,” said Hochschild. “Diversity has become more useful to a country that’s become more demographically complicated. Diversity does a lot of work now.”
At a time when dozens of states are introducing and passing legislation to ban diversity, equity, and inclusion efforts in higher education, however, the entire future of “diversity” is uncertain. The culture war over critical race theory has become an extension of the affirmative action fight.
“The strategic plan from conservatives to galvanize white Americans against affirmative action has reframed it as a policy that takes away opportunities for white people as opposed to what it really is — a policy that’s designed to rectify the centuries-long damage that is a function of systemic racism,” said Harris, the Vassar professor. “Their attacks on affirmative action are meant to make its beneficiaries — people like me — feel like we are not deserving of the opportunities made available to us by affirmative action.”
“They want the burden of guilt to fall on people of color as opposed to racist systems that have created systematic advantages for white Americans,” Harris added. “And in this sense, the current attacks on antiracist ideas like critical race theory and intersectionality are meant to keep the beneficiaries of affirmative action, as well as most Americans, from understanding our nation’s history and how racist systems impacted our past, our present, and our future.”
The fate of affirmative action has likely been decided, and this particular chapter of the culture war concluded. But the arguments that have long underpinned it are far from resolved. What remains, amid this period of backlash to progressive action, are tensions about how America should address lingering inequality and whether policies that address bias will have any place in its future.
Update, June 29, 2 pm ET: This story was originally published on June 21 and has been updated to reflect the Supreme Court’s decision that drastically limits the consideration of race as a factor in college admissions, and Justice Clarence Thomas’s concurring opinion in the cases.
