Educators Scour Thomas’s Record for Clues on High Court Issues

By Mark Walsh — July 31, 1991 7 min read
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President Bush’s nomination of Clarence Thomas to the U.S. Supreme Court has prompted education organizations to scour his record for clues on how he might rule on such issues as school desegregation, employment discrimination, and church-state separation.

Mr. Thomas, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, has frequently expressed opposition to the use of hiring quotas to redress racial discrimination. He has also questioned the efficacy of court-ordered busing, as well as the legal underpinnings of the High Court’s historic 1954 ruling in Brown v. Board of Education declaring segregated schools unconstitutional.

Judge Thomas’s views on affirmative action and other controversial topics have prompted several civil-rights and education groups to consider opposing his nomination to succeed Associate Justice Thurgood Marshall, who announced his retirement in late June. (See story this page.)

“On every issue that is important to us--affirmative action, reproductive freedom, age discrimination, prayer in the schools--he has taken positions contrary to the positions of this organization,” said Robert H. Chanin, general counsel of the National Education Association.

Mr. Chanin said he had little doubt that the nea would join a coalition of groups to oppose Mr. Thomas at his Senate confirmation hearings, which are scheduled to begin in September.

Gwendolyn H. Gregory, deputy general counsel of the National School Boards Association, said members of her organization have generally applauded Supreme Court decisions in recent years “that have shown a more conservative reading of the Constitution.” Thus, she suggested, the addition of Judge Thomas to the Court’s now solidly conservative majority may be welcomed by many board members and administrators.

However, she added, the nsba is concerned that the Court may scrap its 18-year-old test for judging the constitutionality of state action respecting religion. The Court could do that next term when it hears Lee v. Weisman, a case involving prayers at public-school graduation ceremonies.

“As far as church-state issues, we would probably be more happy with someone more liberal,” Ms. Gregory said.

Catholic Upbringing

Raised primarily by his Roman Catholic grandparents in Savannah, Ga., Mr. Thomas attended a Catholic school for blacks operated by a group of white Franciscan nuns.

During remarks to reporters following the July 1 announcement of his nomination, Judge Thomas fought back tears as he thanked his grandparents, his mother, and the nuns, “all of whom were adamant that I grow up to make something of myself.”

Mr. Thomas, who is 43, studied briefly for the priesthood in a Missouri seminary in the 1960’s before earning a bachelor’s degree at the College of the Holy Cross in Worcester, Mass. He later graduated from Yale University Law School after gaining admission with other black students under an affirmative-action program of the type that he would later criticize.

In 1980, as a Congressional aide, Mr. Thomas attended a meeting of black political conservatives in San Francisco, and his views on busing and affirmative action attracted the attention of Ronald Reagan’s Presidential transition team.

Bell’s Choice for O.C.R.

Mr. Thomas’s first position in the Reagan Administration was as head of the Education Department’s office for civil rights.

Terrel H. Bell, President Reagan’s first Secretary of Education, recalled in an interview this month that Mr. Thomas was recommended to him by White House officials, but said that the young lawyer was not one of the so-called “movement conservatives” Mr. Bell felt pressured to hire.

“Clarence was my choice for assistant secretary for civil rights,” Mr. Bell said. “I felt I needed someone who would enforce the civil-rights laws and who wouldn’t equivocate in doing that, but who would also be sensitive in not provoking clashes and drawing contention from the White House.”

Mr. Thomas said in a 1987 speech at the Heritage Foundation that he was initially “insulted” by the offer of a civil-rights position because it ignored his background in tax and corporate law.

Mr. Thomas headed the ocr for only about 10 months before he was nominated to head the federal Equal Employment Opportunity Commission in 1982. But during his brief stint at the Education Department he played a role in the emerging issue of desegregation of state colleges and universities. That issue will be taken up by the Court next year in U.S. v. Mabus, the Mississippi case in which the Justices must decide how far a state must go to dismantle formerly dual systems of higher education.

Civil-rights groups charge that the Reagan Administration settled several higher-education desegregation suits by accepting weak plans after the Carter Administration had sought to prod states into attracting more white students to historically black colleges. However, Mr. Thomas was involved in at least two cases in which he recommended that the Justice Department take enforcement action after unacceptable college-de segregation plans were submitted by the states of Ohio and Alabama.

Mr. Thomas has been a vocal sup porter of historically black colleges. “Some people think that just be cause an institution is black it is inferior,” he said in a 1981 interview with The New York Times. “It’s not true, and black institutions are not illegal.”

During his brief tenure at the civil-rights office, Mr. Thomas was also involved in the Education Department’s response to a long-running federal suit, known then as Adams v. Bell, that charged the ocr with lax enforcement of civil-rights laws.

In 1981, the naacp Legal Defense and Educational Fund and the Women’s Equity Action League sought to have Secretary Bell and Mr. Thomas declared in contempt of court for not meeting court-mandated timetables for investigating and acting on civil-rights complaints. Mr. Thomas said at the time that the timetables were unrealistic.

Views on Desegregation

Mr. Thomas has frequently expressed his view that traditional civil-rights groups have focused too narrowly on school desegregation while ignoring the more fundamental issue of improving minorities’ educational opportunities.

“Twenty-eight years after the Brown decision,” he said in a 1982 speech in Washington, “the evidence on minority education at the elementary, secondary, and the college levels provides no reason to believe that busing or proportional representation is the route to educational equality.”

Mr. Thomas has also criticized the legal foundation of the Brown decision itself.

In a 1987 article he wrote for the Howard Law Journal, Mr. Thomas said that while he concurred with the result of the Warren Court’s ruling, he disagreed with its reasoning that segregated schools are unconstitutional because of the psychological harm they inflict on black schoolchildren.

Mr. Thomas suggested he would substitute for the Warren Court’s reasoning the notion of a “color-blind” Constitution suggested by Justice John Marshall Harlan in his dissent in Plessy v. Ferguson, the 1896 case that upheld the principle of “separate but equal.”

The Brown decision led to “a disastrous series of cases requiring busing and other policies that were irrelevant to parents’ concern for a decent education,” Mr. Thomas wrote in a 1988 article for the Cato Institute.

Next year, the Court will consider the case of Freeman v. Pitts, in which it is expected to further clarify school districts’ constitutional duty to eliminate the vestiges of segregation.

Views on School Prayer

Educators are eager to learn more about Judge Thomas’s views on is sues of church-state separation. His record provides few clues on whether he would rule in favor of greater government accommodation of religion.

“We have found a very skimpy record on church and state issues,” said Joseph L. Conn, a spokesman for Americans United for the Separation of Church and State, a national advocacy group.

In a 1985 Heritage Foundation symposium of black conservatives, Mr. Thomas was asked whether he favored President Reagan’s school- prayer initiative.

“My mother says that when they took God out of the schools, the schools went to hell,” he responded. “She may be right. Religion is certainly a source of positive values, and we need as many positive values as we can get.”

In remarks to the National Press Club in 1986, Mr. Thomas said he believed that public-opinion polls showed that a majority of black Americans supported the Republican position in favor of voluntary school prayer.

Record at E.E.O.C.

Mr. Thomas served for eight years as chairman of the eeoc, the federal agency charged with investigating claims of employment discrimination based on race, color, sex, religion, and national origin. The commission also investigates violations of federal laws requiring equal pay for equal work and barring age discrimination in the workplace.

From the start of his tenure, Mr. Thomas questioned the use of quotas to remedy job discrimination. He set the commission on a course that emphasized redressing individual cases of discrimination, although the record shows that Mr. Thomas did endorse numerical-hiring plans in several large-scale cases handled by the commission.

“Statistical disparities in employment ... may indicate discrimination in the workplace, or they may indicate inadequate job preparation,” he said in a 1982 speech soon after taking the helm at the eeoc

A version of this article appeared in the July 31, 1991 edition of Education Week as Educators Scour Thomas’s Record for Clues on High Court Issues


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