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Posted April 20, 2005
Criticism of Justice Thomas Overheated, Says Brown-Nagin

Brown-Nagin
Brown-Nagin said Justice Clarence Thomas’s views in race cases deserve to be taken seriously.

Academics and advocates alike should consider that Justice Clarence Thomas has a unique voice on the Supreme Court bench, and if they want Thomas to act on racial-justice issues, they should try to find a way to reach him on his own terms, said visiting professor Tomiko Brown-Nagin at a lunch talk sponsored by the Center for the Study of Race and Law April 14.

“Tempers flare when Justice Thomas’s name is mentioned,” said Brown-Nagin, and “I understand the depth of feeling.” Thomas “occupies the so-called black seat on the Supreme Court and he holds views, liberals say, that are adverse to blacks….He disfavors race-conscious remedies…and has a rather dim view of Brown.”

Brown-Nagin said she disagrees with Thomas on many issues. As a beneficiary of Brown v. Board of Education whose parents grew up in the Jim Crow South, Brown-Nagin disputed Thomas’s claim that quality, integrated education has no lasting benefits for African-American students. Nevertheless, she chose to take a contrarian position because much of the rhetoric about Thomas’s jurisprudence is exaggerated and intellectually dishonest. Thomas has been called “someone who looks black, but thinks white,” she said, and an “Uncle Tom” who “obeys” Justice Antonin Scalia. A recent article by a legal academic called Thomas even worse—he was a “Sambo” for cultivating good relations with whites for his own advantage and to the disadvantage of other blacks.

“I think the rhetoric is inhumane…It’s dehumanizing to Thomas as well as to all of us,” Brown-Nagin said. “In my view, it’s well beyond what anyone needs to do to make their point.”

In substance, the criticisms misrepresent Thomas’s views in at least two important race-related cases, Grutter v. Bollinger and Zelman v. Simmons-Harris, she said. “I think that he has something to say and it’s worth hearing.”

In some respects Thomas’s dissenting opinion in Grutter discusses affirmative action with more breadth and depth than Justice Sandra Day O’Connor’s majority opinion, Brown-Nagin said. O’Connor uncritically accepted the University of Michigan’s argument that enrolling a racially diverse student body was central to its educational mission and that assembling diverse classes required race-conscious measures because minorities on average have lower LSAT scores and grades.

Brown-Nagin says Michigan ignored “an elephant in the room”: how reliable are LSAT scores for predicting success in law school or law practice, and are these measures overused in the admissions process? A group of students who wrote an amicus brief on behalf of Michigan in Grutter disputed the plaintiffs’ claims of entitlement to admission to the law school because their test scores were higher, on average, than affirmative action admits.

According to the students, “The problem that race-conscious admissions policies address is not the limited…academic ability of minorities. The problem… is that law schools rely so heavily on the LSATs when they know it does a poor job of predicting future academic performance for African-American students, Hispanics, Native Americans, certain Asian groups, women on average, and most definitely students of working class and poor backgrounds.”

O’Connor does not address the issue, but Thomas “engages this argument frontally. He takes it on. In fact, he runs with it, and in the process he shows that he certainly is no clone of [Justice Antonin] Scalia…on this particular issue.”

Thomas said law schools’ need to use race criteria to select a diverse student body “is a self-inflicted wound.” Thomas wrote, “Having decided to use the LSAT, the law school must accept the constitutional burdens that come with the decision.”

Thomas argued that law schools lack the will to come up with standards that are not discriminatory. Thomas also insisted that affirmative action stigmatizes beneficiaries—a claim that Brown-Nagin noted is without empirical support.

Thomas’s views on testing are consistent with academic critics on the intellectual left who have long claimed that some testing practices disadvantage minorities and in particular those minorities “who are not even in the pipeline” to Michigan’s application pool. Like these critics, Thomas “views [minority students] as full stakeholders—stakeholders who are entitled to an educational structure that facilitates their climb.”

In Zelman (2002), the Supreme Court upheld Cleveland’s school voucher program even though parochial schools disproportionately participated in the plan.

Thomas voted to uphold the program because he worried that failing urban schools disproportionately affect minority children and because of the core purposes of the 14 th Amendment. “He rejects the logic [of those] who oppose vouchers on the basis of what he says are ‘formalistic concerns about the Establishment Clause and a romanticized ideal of universal public education.’”

Critics of school choice claim that vouchers will lead to the collapse of public schools by skimming the best students and resources from the system, which will ultimately hurt poor minority students.

These claims “have resonance,” but “are overstated,” Brown-Nagin said. “Many poor minority parents support school choice.” In fact, one of the first successful school-choice programs, begun in 1970, was the brain child of a Democrat, an African-American assemblywoman from Milwaukee. Yet critics “are still attacking those who support school choice as if to do so is extraordinary and out of touch with blacks,” Brown-Nagin said. “It’s intellectually dishonest to brand Thomas as out of touch on this issue and as unconcerned when he clearly is concerned about racial justice and…the plight of poor minority children” in particular.

Thomas’s objections to the agenda favored by liberal civil rights groups turn on remedial considerations, Brown-Nagin pointed out, rather than on a “disregard of racial inequality” as some claim. “What he will not do is embrace race-conscious remedies,” she said, a belief he has stated for a long time. Critics should accept his position and “move on.”

Brown-Nagin also suggested the anger at Thomas is connected to the conventional but wrong-headed wisdom, since Brown, that the Supreme Court can best address racial justice, when perhaps political means would work better.

Brown-Nagin said that advocates who are concerned about racial injustice should acknowledge Thomas’s views in their efforts to craft viable legal and political solutions to social problems.

“If Thomas is willing to support a Zelman-type remedy, then why not think about fashioning [those types of remedies]? Why not consider the merits of class-based affirmative action rather than rejecting it out of hand because it is a less [desirable] remedy than race-based affirmative action?

“His ideas are not fully formed. He doesn’t really accept the full implications of what’s he’s saying…but he is lodging a critique that no one else is in the legal academy, and so we should listen to him,” she said. “If one is going to try to engage him, the rhetoric needs to be toned down.”
• Reported by M. Wood

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