A Thought on Fisher

Justice Clarence Thomas has one.  Fisher v University of Texas at Austin was a case that wound up in front of the Supreme Court that involved a white woman who was denied admission as a result of UTA’s racial preference admissions system that explicitly deprecated some students and elevated others in the UTA admissions system solely on the basis of race, or so she claimed in her suit.

Monday, the Supremes took the easy way out and sent the case back to the Appellate Court on the legal technicality that that court had used the wrong criterion in reaching its decision upholding UTA’s race-based admissions system.

Justice Thomas, in his separate concurring opinion, had this to say concerning race-based discrimination, as cited in The Wall Street Journal:

While I find the theory advanced by the University to justify racial discrimination facially inadequate, I also believe that its use of race has little to do with the alleged educational benefits of diversity. I suspect that the University’s program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities….  The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U.S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58–59 (2003) (“Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually….”)

…A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers. See, e.g., …Tr. of Oral Arg. in Bolling v. Sharpe, O.T. 1952, No. 413, p. 56 (“There was behind these [a]cts a kindly feeling [and] an intention to help these people who had been in bondage. And there was and there still is an intention by the Congress to see that these children shall be educated in a healthful atmosphere, in a wholesome atmosphere, in a place where they are wanted….”)

…Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign.

What he said.

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