Clarence Thomas, Yale Law School, and Affirmative Action:

Like co-conspirator David Bernstein, I think it wasn’t unreasonable for Justice Clarence Thomas to believe that he got into Yale Law School without the aid of affirmative action. It is important to remember that Thomas was in the top two percent of his undergraduate class at Holy Cross. When I was a student at Yale Law School in the 1990s, I had numerous white classmates who had gotten in by virtue of being in the top 1-2 percent at undergraduate institutions of the same caliber as Holy Cross, and in some cases ones significantly less prestigious. Admittedly, I don’t have any aggregate statistics; but I certainly met quite a few such students during my time at YLS. I was able to meet a significant percentage of the other students at YLS at the time, due to the school’s small size; so the people I met were probably a roughly representative sample of the YLS student body. Most of the white YLS students from non-elite undergrad institutions did not have anything in their backgrounds comparable to Thomas’ inspirational story of growing up in poverty in a broken home (Thomas’ father left his family when he was an infant, and Thomas was raised by his grandfather).

Assuming that Thomas had a good LSAT score, the combination of his record at Holy Cross and his life story might well have been enough to get him admitted to YLS were he white. Based on my observations, he might have gotten in on that basis in the 1990s – a time when admissions standards were probably slightly higher than in the 1970s because by that point Yale had regained its standing as the generally acknowledged no. 1 law school (a position it had arguably lost to Harvard in the 70s).

As liberal constitutional law scholar Mark Tushnet documents in this article, Thomas’ opposition to affirmative action is not based on the view that it is intrinsically unjust to whites, but on his belief that it does blacks more harm than good in the aggregate. For reasons I discussed in detail here, it therefore would not be unethical for Thomas to benefit from affirmative action while personally opposing it. In fact, however, it is possible that Thomas had good reason to believe that he might have gotten to YLS even without the benefit of affirmative action. If that conjecture is right, then affirmative action was a net loss for him in that phase of his career (though it probably helped him later in the Reagan Administration). Its existence led potential employers and others to doubt his abilities, without helping him to get into Yale.