In Concurrences to Supreme Court Ruling, Thomas, Gorsuch, Kavanaugh Question Benefits of Affirmative Action


Concurrences in Thursday’s Supreme Court decision, which severely restricted affirmative action in college admissions, further challenged the legal foundations and impacts of race-conscious admissions.

Alongside a majority opinion from Chief Justice John Roberts, Associate Justices Clarence Thomas, Neil M. Gorsuch, and Brett Kavanaugh backed a colorblind approach, attacked the efficacy of affirmative action policies, and took aim at the dissenting judges.

The ruling comes out of anti-affirmative action group Students for Fair Admissions’ first lawsuit against the University in 2014. In a 6-3 decision, the Supreme Court also ruled against the University of North Carolina and its admissions practices.

Thomas grounded his concurrence — extending nearly 20 pages longer than Roberts’ opinion — in an extensive history of Supreme Court decisions, legislation, and political theory.


He argued that affirmative action amounts to racial discrimination under the Constitution and provided an “originalist defense of the colorblind Constitution.” In his opinion, he also aimed to expand on the “flaws of the Court’s Grutter jurisprudence.”

Grutter v. Bollinger — a 2003 case allowing the continued use of race as a factor in student admissions processes — hinged on the “educational benefits of a diverse student body.”

Though Thomas acknowledged that “exposure to different perspectives and thoughts can foster debate, sharpen young minds, and hone students’ reasoning skills,” he found it “not clear how diversity with respect to race, qua race, furthers this goal.”

Rather than increasing the overall number of Black and Hispanic students in college, Thomas argued, affirmative action serves to “redistribute individuals among institutions of higher learning, placing some into more competitive institutions than they otherwise would have attended.”

He wrote that policies like affirmative action are “leading to a world in which everyone is defined by their skin color, demanding ever-increasing entitlements and preferences on that basis.”

Thomas also took issue with the universities themselves.

Referencing Harvard’s past antisemitic admissions policies and its “prominent role in the eugenics movement,” Thomas said neither Harvard nor UNC’s histories place them as “trustworthy arbiters” of the necessity of affirmative action.

“Both Harvard and UNC have a history of racial discrimination,” he wrote. “But, neither have even attempted to explain how their current racially discriminatory programs are even remotely traceable to their past discriminatory conduct.”

“Those engaged in racial discrimination do not deserve deference with respect to their reasons for discriminating,” Thomas added.

Harvard has long denied that its race-conscious admissions program discriminates against Asian Americans.

“For almost a decade, Harvard has vigorously defended an admissions system that, as two federal courts ruled, fully complied with longstanding precedent,” top University leaders wrote in a statement.

Thomas also took aim at Associate Justice Ketanji Brown Jackson ’92. Jackson recused herself from the decision due to her former position on Harvard’s Board of Overseers — the University’s second-highest governing body — but wrote the dissent in the UNC case and joined part of Associate Justice Sonia M. Sotomayor’s dissent.

In his opinion, Thomas argues that Jackson believes “the legacy of slavery and the nature of inherited wealth” necessarily “locks blacks into a seemingly perpetual inferior caste.”

“Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood,” Thomas wrote.

In a concurrence joined by Thomas, Gorsuch argued that affirmative action violated Title VI of the Civil Rights Act of 1964 — adding support to Roberts’ reliance on the Equal Protection Clause of the 14th Amendment in the majority opinion.

Title VI states that any programs that receive federal funding will not be allowed to discriminate against people on the grounds of “race, color, or national origin.” He highlighted the clause’s wording as both “powerful” and “easy to understand.”

Both Harvard and UNC receive millions of dollars in federal funding every year.

Echoing Roberts and Thomas, Gorsuch pointed to classification by race as an overly bureaucratic creation resting on “irrational” stereotypes.

Gorsuch also highlighted SFFA evidence suggesting that Harvard would be able to “nearly replicate” the student body’s current racial composition “without resorting to race-based practices” by instead adding boosts for socioeconomically disadvantaged students and reducing them for children of faculty, donors, and alumni.

Harvard has not announced any plans to stop the use of legacy, donor, or athlete preferences, even as peer universities and lawmakers challenge the practice.

In his concurring opinion, Kavanaugh argued that while “the effects of past racial discrimination still persist,” affirmative action should not be extended indefinitely into the future based on the Supreme Court’s precedents.

He pointed to Grutter, in which the majority opinion stated that race-conscious admissions policies “must have a logical end point.”

“I respectfully part ways with my dissenting colleagues on the question of whether, under this Court’s precedents, race-based affirmative action in higher education may extend indefinitely into the future,” he wrote. “The dissents suggest that the answer is yes. But this Court’s precedents make clear that the answer is no.”

Kavanaugh pointed to the specific 25-year time limit set forth by the Supreme Court in Grutter, which he wrote was meant to ensure that “race-based affirmative action in higher education could continue only for another generation.”

“I would abide by that temporal limit rather than discarding it, as today’s dissents would do,” Kavanaugh wrote.

—Staff writer Paton D. Roberts can be reached at Follow her on Twitter @paton_dr.

—Staff writer Claire Yuan can be reached at Follow her on Twitter @claireyuan33.