No, Justice Thomas, Affirmative Action Is Not Like Slavery

Terrance Heath

As I wrote last week, I’m pretty much used to white conservatives peculiar relationship to America’s peculiar institution. Whether they’re defending it, or using it to define everything and anything they dislike, white conservatives just can’t stop talking about slavery. Maddening as it may be, I’ve come to expect as much from them.

Now, in a twisted example of equal opportunity offensiveness, black conservatives are getting in on the act. Last week it was GOP candidate for Virginia’s lieutenant governor E.W. Jackson. This week it’s Supreme Court Justice Clarence Thomas.

He’s known for his sphinx-like silence on the bench, during arguments before the court, but Thomas made his thoughts about affirmative action crystal clear. In a concurring opinion that agreed with the Court’s decision not to defend the University of Texas’ affirmative action program, Thomas urged the court to outlaw affirmative action altogether.

No surprise there. Thomas is longtime opponent of affirmative action. But Thomas went on to compare supporters of affirmative action to the segregationists the old South. Apparently, he was just getting warmed up. Justice Thomas went on to compare affirmative action to slavery.

In a fiery concurring opinion Monday, Supreme Court Justice Clarence Thomas said the University of Texas at Austin’s admissions policy amounted to discrimination and compared the school’s affirmative action program to slavery and segregation.

“Slaveholders argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life,” Thomas wrote in his separate opinion on Fisher v. University of Texas at Austin. “A century later, segregationists similarly asserted that segregation was not only benign, but good for black students.”

Thomas cited Brown v. Board of Education, the landmark 1954 Supreme Court case that led to the desegregation of public schools, in drawing a comparison between segregation and affirmative action.

“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,” he wrote in the 20-page opinion. “The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now-denounced arguments of slaveholders and segregationists.”

Somewhere, Thurgood Marshall is spinning in his grave. Had I just one wish today, I would resurrect Justice Marshall, for the simple pleasure of hearing how the man who argued and won Brown v. Board of Education  would eviscerate Thomas’ opinion.

However much Justice Thomas dislikes it, affirmative action is constitutional. But Thomas not entirely wrong about there being a connection between affirmative action and slavery. There’s a definite connection between affirmative action and slavery. The former is an entirely constitutional corrective action to prevent the various impacts of the latter from persisting for generations to come.

In his book, Ending Slavery: How We’ll Free Today’s Slaves, modern-day anti-slavery activist Kevin Bales describes the steps necessary to end mondern-day slavery. Key among those steps is the rehabilitation of slaves. Emancipation is insufficient without rehabilitating slaves who need medical care, and a reorientation of their skills.

In New Slavery: A Reference Handbook, Bales describes this process as “restoring the pershonhood of the person.”

The essential condition of bondage is in the minds of the people. …They have been conditioned to accept that their place is at the periphery of society. The process of release and rehabilitation is to restore the personhood of the person, to restore self-esteem, confidence, and the feeling that they too can win.

In, Ending Slavery, he goes on to describe how this process stopped short after civil war brought and end to slavery in the U.S.

After the American Civil War, freed slaves knew what it would take to build a decent life in freedom. Their work experience told them that forty acres and a mule could feed a family and grow enough of a cash crop to make a life and get the children to school. American slaves never got their forty acres and a mule.

After the American Civil War freed slaves also knew what it would take to build a decent life in free dome. Their work experience told them that forty acres and a mule could feed a family and grow enough of a cash crop to make a life and get the children to school. American slaves never got their forty acres and a mule.

Instead, without collective investment rehabilitation and restoration, Bales writes that many slaves return to slavery. Modern day slaves return to a state of enslavement either by choice, or they are compelled to do so because — except for being newly released from bondage — their circumstances remained unchanged.

Restoration of personhood moves the newly emancipated from their “place” at the periphery of society to full and equal place — from slavery to citizenship. Reorientation of skills returns to the former slave that which slavery was design to take from him; ownership of his productive capacity, and the right to the fruits of his labor. Investment in this restoration, in a moral sense, is the former slave’s due from the society that supported and profited from his enslavement.

Much as modern day slaves freed from systems like the longstanding practice of debt bondage in India quickly return to enslavement in the absence of a restoration process, the gains made by ex-slaves in the U.S. were quickly reversed i the collapse of Reconstruction. In Understanding Global Slavery: A Reader, Bales writes:

In America, the ugly sickness of slaver reemerged in segregation, discrimination, and lynch laws. In part, this was because most Americans sought to ignore the legacy of slavery. The immediate needs of freed slaves were not met in the years following 1865, and Americans since then have attempted to draw a curtain over the past, to let bygones be bygones.

Some 4 million former slaves were, in Bales’ words, “dumped into the society and economy of the United States” with little preparation. The work of helping them achieve full lives was half done, at best.

We know what happened after that.

With the end of Reconstruction and the withdrawal of federal government protection, former slaves in the South found themselves disenfranchised and subject to the kind of systematic campaign of violence we would call terrorism today. Generations lived with the constant threat of the particular brand of violence James Allen documented in Without Sanctuary: Lynching Photography in America.

Many, my own ancestors among them, fell into the American-style system of debt bondage known as sharecropping almost immediately upon emancipation. Others, under the notorious “black codes” established to intimidate and control Blacks, were forced into a syste author David Blackmon defined as slavery by another name.

This system endured for more than 80 years after the end of the Civil War, and swallowed up the lives of countless African-Americans. As one person put in the PBS Documentary Slavery By Another Name, for centuries slavery robbed generations of African-Americans of any claim on the American Dream, and for decades after slavery ended that dream was held out of reach.

So, affirmative action is not in an way “like slavery.” It is intended to remedy some of the lingering impacts of slavery, near-slavery, Jim Crow, and segregation, that effectively hung a “Whites Only” sign on the American Dream and kept it there for centuries.

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