If a state is not acting to remedy past discrimination, Thomas and the majority argued, then the use of race as a criterion must be very narrowly tailored. Sure, Thomas conceded, the states may have had, or thought they had, impeccable motives for counting by race. But, Thomas countered, the effects may not be benign. " . . . Every time the government uses racial criteria to 'bring the races together' someone gets excluded, and the person excluded suffers an injury solely because of his or her race.
. . . This type of exclusion . . . is precisely the sort of government action that pits the races against one another, exacerbates racial tension, and 'provokes resentment among those who believe that they have been wronged by the government's use of race.'"
Part of the dissent's argument focused on the presumed benefits to students of being educated in racially balanced classrooms. Thomas replied that the social science data is hardly conclusive. There is actually very little evidence that racial mixing improves test scores. Further, Thomas argued powerfully that racial discrimination of almost any kind violates the 14th Amendment and requires far more than social science surveys to buttress it.
But Thomas also detected and exposed the condescension inherent in that argument. He pointed to predominantly black schools both pre- and post-Brown v. Board of Education in which students have excelled, and noted the evidence that students in historically black colleges may do better than those who attend majority white schools. But here's the zinger: "The Seattle school board itself must believe that racial mixing is not necessary to black achievement. Seattle operates a K-8 'African-American Academy' which has a 'non-white' enrollment of 99 percent." The school, he noted dryly, was established as part of the school board's effort to improve African-American test scores (and it seems to be having success).
Clarence Thomas ended by proudly lining up with Justice John Marshall Harlan, who famously dissented from the unjust Plessy v. Ferguson decision, declaring, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Harlan is considered a civil rights hero. And Thomas? His greatness is not recognized by his own generation, but history will appreciate him.