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Where Sotomayor and Thomas Agree on Affirmative Action

U.S. Supreme Court Justice Sonia Sotomayor’s new memoir, My Beloved World, has been getting a lot of buzz, from 60 Minutes to NPR to The Washington Post (which published both a book review by Dahlia Lithwick and a separate feature article by Robert Barnes). With the Supreme Court slated to rule later this year on Fisher v. University of Texas, challenging the use of race in higher-education admissions, all of these analyses have focused on the way Sotomayor reacted to receiving affirmative action at Princeton College and Yale Law School.

Her story about growing up poor and Puerto Rican in the Bronx naturally invites comparison to her colleague Justice Clarence Thomas’s 2007 memoir, My Grandfather’s Son, detailing his tale of overcoming poverty and racism and his very different reaction to affirmative-action policies. While Sotomayor is grateful for affirmative action, Thomas’s memoir focused on the stigma he feels is attached to his receiving special treatment from Yale. Thomas wrote, “I’d graduated from one of America’s top law schools—but racial preference had robbed my achievement of its true value.”

For some, the take-away is that Sotomayor has a bigger heart because both justices benefited from affirmative action but Sotomayor would extend a hand while Thomas is trying to pull up the ladder from those coming behind him.

What that narrative misses, however, is that both justices favor affirmative action for low-income and working-class students of all races—a program that would have helped both the young Clarence Thomas and the young Sonia Sotomayor irrespective of race or ethnicity.

Thomas, in his Supreme Court confirmation hearings, said he supported colleges and universities providing a leg up to economically disadvantaged students of all races. What he objected to was using race as a proxy for disadvantage given “that all disadvantaged people aren’t black and all black people are not disadvantaged.”

And it’s telling that in her memoir, Sotomayor also frames the rationale for affirmative action in terms of class rather than race. In a widely cited passage in the book, Sotomayor writes: “I had no need to apologize that the look-wider, search-more affirmative action that Princeton and Yale practiced had opened the doors for me. That was its purpose: to create the conditions whereby students from disadvantaged backgrounds could be brought to the starting line of a race many were unaware was even being run.”

In emphasizing the notion that affirmative-action policies help disadvantaged students, Sotomayor’s reasoning parallels that of Justice Ruth Bader Ginsburg, who noted in the 2003 Gratz v. Bollinger case challenging affirmative action at the University of Michigan that African-Americans had a poverty rate of 22.1 percent and Hispanics had a poverty rate of 21.2 percent, compared with a white poverty rate of 7.5 percent. Black and Latino students, she noted, “are all too often educated in poverty-stricken and underperforming institutions.”

There are two important aspects worth noting about this line of argument. First, in practice, racial-preference policies tend not to benefit those black and Latino students who are “educated in poverty-stricken and underperforming institutions.” According to The Shape of The River, by Derek Bok and William Bowen, two strong supporters of affirmative action, 86 percent of black students at the selective colleges they studied were middle or upper class. Indeed, at the University of Texas, the racial-preference policies were specifically designed in part to benefit “the African-American or Hispanic child of successful professionals in Dallas,” in order to provide economic diversity within minority groups.

Second, a ruling against racial preferences in Fisher would do nothing to stop universities from providing an admissions preference to economically disadvantaged students of all races. To the contrary, if opponents of racial preferences prevail, experience suggests it is more, not less, likely that affirmative action will be provided based on class. In the states where race has been banned at public universities, usually by voter initiative, almost all have adopted class-based affirmative-action plans instead.

Unwittingly, then, the Thomas and Sotomayor memoirs point to common ground for affirmative action in the coming years: giving a break to disadvantaged students—the young Clarence Thomas and the young Sonia Sotomayor, indeed the young Barack Obama or young Bill Clinton—but not to any economically and educationally advantaged offspring they might have.

Richard Kahlenberg is a senior fellow at the Century Foundation.

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