In his concurrence on Students For Fair Admissions, Justice Clarence Thomas wrote, “In the wake of the Civil War, the country focused on restoring the Union and establishing the legal status of newly freed slaves.”
Interesting phrasing by Thomas. It suggests he is about to write something profound, enlightening, and constructive on the Students For Fair Admissions decision the court made regarding Harvard and the University of North Carolina admissions policies.
For 59 pages, he prattled on how the Constitution is color-blind, referencing Justice Harlan’s descent in the Plessy v. Ferguson case around separate but equal accommodations. Unfortunately, Harlan’s words didn’t persuade the other Justices; they ruled in favor of regulating Blacks as second-class citizens, thus creating America’s apartheid law. For five decades, Blacks toiled under the dehumanization of second-class citizenry in a country that boldly claimed to be virtuous in its embracement of justice and freedom for all those within its borders.
Thomas always felt the court’s decision on Bakke was incorrect and ruled against any new cases around race-based admissions, only to find himself on the losing side. Now, he was part of a different court with a clear agenda. He found the support he needed with Alito, Kavanaugh, Barrett, Gorsuch, and most importantly, Chief Justice Roberts. Thomas could see a path toward achieving a long-held goal focused on his misguided belief. When he takes the position of Judge Harlan who –in his descent in the Plessy v Ferguson 1896 decision—that the Consitution is color blind, he forgets a salient fact: the Constitution may be color blind, but people are not.
Plessy v Ferguson was the law of the land for fifty years. During that time, a portion of this country’s population experienced the vicissitudes of an extended form of slavery without the chains, whips, and auction block. Thirty years earlier, Congress passed the Civil Rights Act of 1866, which said,
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States, and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shat have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings, for the security of person and property, as is enjoyed by white citizens, and shall be subject to the like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding.”
The problem of the Civil Rights Act of 1866 and Plessy centered around the fact that one guaranteed Black people’s rights, and the other denied them because they were Black—a fact Thomas conveniently overlooked in the rendering of his concurrence with Chief Justice Roberts on the Students For Fair Admissions case.
Thomas embraces the idea race shouldn’t be a factor in the college admission process. That would be great if we lived in such a country. Let’s not forget this country’s history and the views they had of those who were not white. Jefferson, one of the founders of the country’s wrote the Declaration of Independence that stated the following,
‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’
These were inspirational words that people referenced and recited to this day—written to inspire hope and send a message.
Jefferson was letting King George III know they would no longer stand for being mistreated and that they would exercise their rights to life, liberty, and happiness. But that was for all those whose skin was white, not for the thousands who were Black and enslaved. Though the Declaration spoke of life, liberty, and the pursuit of happiness, that would not be something many would experience. Instead, they would talk of misery, pain, degradation, and the longing for freedom.
Jefferson’s writings were exquisite when he focused on the prospects and future of the country, but highly derogatory when it came to Black people as he does here,
“I advance it, therefore, as a suspicion only that the blacks, whether originally a distinct race or made distinct by time and circumstances, are inferior to the whites in the endowments both of body and mind.” – Jefferson’s Writings p.270
For a moment, focus on these words of the country’s third president: “are inferior to the whites in the endowment body of body and mind.”
As if enslavement wasn’t bad enough, but to be called inferior, in body and mind, and to use this baseless claim to justify the brutality of enslavement, then to see it morph from enslavement to denial of meaningful education along with white children because of the words of Jefferson where embrace by individuals determined to deny them their human rights to better themselves in ways similar to how their white counterparts did. Through the attainment of a college education.
Justice Thomas’s statement of having a color-blind Constitution results not from ignorance but indifference, disrespect, and demonization. What is one to take from these words in Article 1 Section 2?
“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons.”
Thomas’s words and implications represent a significant shift in the court and the country around the hard-fought advances in Civil Rights. We need to pay attention to what will happen in this area, starting with a simple fact: Plessey v. Ferguson was decided in 1896 by a ruling of 7-1.
For thirty years, the 1866 Civil Rights Act was on the books. The court completely ignored it with their Plessey decision, which made separate but equal the cornerstone segregationists built their platform of contempt, hate, and vengeance on any United States citizen whose skin wasn’t white.
From 1869 to 1954, for eighty-five years, Blacks lived under a legalized version of apartheid in the very country they helped to build and died for in every war the United States was ever involved in.
With the Brown v. Board of Education decision decided by a 9-0 ruling by the Supreme Court, which instructed the elimination of separate but equal in public schools with all deliberate speed, it took some time for the tentacles of separate but equal to loosen their grip but eventually states began to abide by the law.
But the fight for admissions to Colleges and Universities continues to be an uphill battle for Black and Brown students, a struggle many are willing to take on because they know and understand a college education can be the pathway to upward mobility.
The Students For Fair Admission decision and the reason Edward Blum brought this case forward present a considerable concern we should pay attention to.
Blum’s use of the 1866 Civil Rights Act and this current court’s embracement of it strikes at the heart of the problematic progress this country has made in coming to grips with its race issue, which is a red flag.
Justice Jackson wrote in her dissent on The Students For Fair Admissions,
“Gulf-size race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past have indisputably been passed down to the present day through generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—“the self-evident” truth that all of us are created equal.”
What Justice Jackson recognizes, and her counterparts do not, is that Blacks in this country continue to face uphill battles in education, job advancement, home ownership, and overall wealth accumulation. Various research studies have shown access to advanced education, such as college, is one of the more definitive ways of resolving many of these issues.
A 2020 study conducted by CiTi GPS found that,
“if racial gaps for Blacks had been closed 20 years ago, U.S. GDP could have benefited by an estimated $16 trillion.
But that doesn’t matter to individuals like Edward Blum, the man behind the Students For Fair Admissions. He claims he is working towards the elimination of the use of race:
“Now, philosophically, there’s a common theme in all of this. Like the vast majority of Americans, I believe that an individual’s race and ethnicity should not be used to help them or harm them in their life’s endeavors. And those life’s endeavors include, you know, if they’re gerrymandered into a voting district because they’re a certain race, if they’re applying for a job that they’re not going to get because they’re a certain race, or they’re applying to a college or university that they won’t be admitted to because of their race or ethnicity.”
But there is ‘tell’ in his story to the reporter that gives away his real reason for doing what he does. It is this: if they’re gerrymandered into a voting district because they’re a certain race,
Blum lost a Congressional race due to gerrymandering. The district he was running in was predominantly Black, as was the candidate. He eventually sued, claiming Texas violated the 14th Amendment by gerrymandering the district he won.
Blum isn’t a lawyer but an active neoconservative focused on eliminating what he sees as race-based programs by using race as the foil for his cases. It’s rather sadistic when you consider it, so we must pay attention to what Blum and others are doing because they are coming for it all. Blum and those who back him are determined to blow up all the progress that has been made over the years to level the playing field for those who are not white.
We are in the beginning phase where those in power work in the shadows and have their plans and goals executed through cutouts like Edward Blum, governors, Congress and Senate members, and the Supreme Court.
Blum has a similar discrimination lawsuit against the United States Naval Academy despite the court saying the military academies are off-limits. He has filed a suit against the Fearless Fund, an Atlanta-based venture capital firm that awards grants to black-owned women’s businesses.
Soon after the decision from the court came down, a letter from thirteen state attorney generals went out to 100 CEOs, implying their DEI programs were now illegal and trying to get them to dismantle them.
There is no doubt Blum and others will be coming with a full head of steam to bully, threaten, and intimidate companies, colleges, and universities to drop all efforts in areas of DEI. And there will be those who will acquiesce out of fear, others out of relief. Yet, some will hold steadfast and expand their efforts in this area because they believe the DEI concept works and will have the data to prove it’s working for them.
For the moment, Edward Blum, through the Students For Fair Admissions, has scored a win and feels ultimately emboldened. How else do you explain his going after the Navy Academy?
Throughout the history of this country, every effort to thwart Black people and block the advancement of Black people in this country. Most of the time, we found ways around, over, or under them to obtain the right to participate in the American dream that our ancestors helped to create.
At this moment in time, we need to recognize Edward Blum is coming for it all. He has shown us how he intends to do it. He has the financial backing to carry out his lawsuits, and he has found willing candidates to come forth with apparent grievances that seemingly qualify for consideration and would cause the Supreme Court to take the case.
Du Bois writes in The Soul of Black Folk,
“The Nation has not yet found peace from the sins; the freedman has not yet found in freedom his promised land.”
The sins of enslavement, indeed, are long and deep. The human degradation, denial to see them as made in the image of their Christan God, only to look upon them as profit centers from which many derived wealth passed on through generations created by men, women, and children uprooted from their homes. Why? Because of insatiable greed in this country.
The enslavement ended, but not the greed. This greed I’m referring to has to do with the concerted effort to hold back the descendants of those denied the right to read and write or attend school because, as Jefferson wrote, blacks . . . are inferior to the whites in the endowments both of body and mind.
But that will be covered in the second part of Affirmative Action, DEI, Voting Rights, They Want It All!