'Silent' Justice Outspoken on Affirmative Action

Clarence Thomas says his Yale law degree "bore the taint of racial preference."

Sept. 30, 2007— -- Although Clarence Thomas has written his views on preferential policies in his Supreme Court opinions, the release of his book and his interview with ABC News provide an opportunity for the justice to explain, more thoroughly then ever before, why he thinks racial preferences are wrong and detrimental.

His views have long vexed civil rights groups, but they also differ from the traditional conservative outlook and might re-shape the nation's debate over affirmative action. While conservatives often talk about leveling the playing field for society as a whole, Thomas focuses on the stigmatizing effect affirmative action has on those it is meant to help.

Clarence Thomas's personal experience, living through segregated elementary schools and then transitioning to mostly white schools, gives him a starkly different perspective from that of white conservatives opposed to affirmative action.

"When you talk about affirmative action programs you talk about the benefits and the costs." says Roger Clegg of the Center for Equal Opportunity, a group critical of racial preferences. "Thomas can talk about costs with a credibility you can't have if you are not a supposed beneficiary of affirmative action."

When Thomas applied to Yale Law School, his race was taken into consideration. He wrote in his book, "I asked Yale to take that fact into account when I applied, not thinking that there might be anything wrong with doing so."

But Thomas says that after he graduated from Yale, he went on several job interviews with "one high-priced lawyer" after another and the attorneys treated him dismissively. "Many asked pointed questions, unsubtly suggesting that they doubted I was as smart as my grades indicated."

The fact that he couldn't get a job would shape his thoughts on affirmative action programs for years to come. Thomas wrote, "Now I knew what a law degree from Yale was worth when it bore the taint of racial preference. I was humiliated—and desperate."

In his interview with ABC News, Thomas said he was unable, even when he was nominated to the Supreme Court, to erase the stigmatizing effects of racial preference. "Once it is assumed that everything you do achieve is because of your race, there is no way out." he said. "…it is irrebuttable and it is proved to be true. In everything now that someone like me does, there's a backwash into your whole life is because of race."

Peter H. Schuck, a professor at Yale Law School and a prominent critic of affirmative action, says that the stigma associated with preferences has long been an argument of those opposed to the programs. But he hopes that Clarence Thomas's real life experience "will help to broaden the debate". Says Schuck, "The fact that he is who he is gives the argument a special force."

But opponents of Thomas's position argue there is no real stigma. Levi Pearson, the Communications Director for the National Black Law Students Association, contends "There are no special conditions once you get into law school. You are competing at the same level." Pearson says, "Affirmative Action creates doors to be opened. At some point you have to have special access to be able to get in the door."

Besides the stigmatizing aspect that Thomas sees in affirmative action programs, he also worries about young children being thrust into programs and situations for which they are unprepared. Says Thomas, "So we'll expend huge amounts of energy over affirmative action, but very little over what's really happening in the classroom for the bulk of these kids." Thomas maintains children "don't need all these theories" and says "they need people to actually help them."

In the past, Thomas has gone after those who say that programs that are predominantly black might somehow be inferior.

In a recent Supreme Court opinion striking down voluntary public school district plans to assign children to schools based on race, Thomas writes that scholars have "differing opinions as to whether educational benefits arise from racial balancing."

As evidence, he cited a study done by George Mason University professor David J. Armor. Armor, who opposed the school district plans for race-based placement in the Supreme Court argument, says "actual achievement data, when corrected for the rate of poverty at the individual level, show that black students in majority black schools perform about the same as in integrated schools."

In a 1995 case regarding judicial desegregation remedies, Thomas wrote, "It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior."

After detailing his painful struggles in life, Thomas wrote he doesn't want other children to have to suffer like he did. "You don't know what you're putting on these kids," he wrote. "You don't know how it is to have no money and no shoes or old boots and things like that. You don't know how it is not to be able to afford to go home when other kids are on spring break."

Dennis D. Parker, Director of the American Civil Liberties Union's Racial Justice Program, scoffs at the fact that Thomas, who benefited from affirmative action, "now appears to be closing the door for others to follow." Parker contends, "Affirmative action recognizes there are a lot of societal forces that act as a barrier to opportunity." He adds, "I do not buy the argument that people are being pushed into situations that they can't handle. Past history has shown affirmative action has been successful in terms of assisting the creation of a minority middle class."

Parker says that some critics are particularly hard on Clarence Thomas because, not only is he the only African American on the court but he took the seat of Thurgood Marshall, a civil rights pioneer who dedicated his life to the cause of equality. Parker says, "There is a sense there has been a loss."

But Thomas says he was able to sit down for "quite some time" with Justice Marshall before his death. Thomas says Marshall's "attitude was that it was up to me to do in my time what I have to do as he did in his time what he had to do."

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