Clarence Thomas, Fisher v. University of Texas, and the Future of Affirmative Action in Higher Education

Scott D. Gerber *

I was flattered to be invited to participate in a February 21, 2014, symposium at the University of Chicago Law School sponsored by the Midwest Black Law Students Association about “Affirmative Action: Past, Present & Future.” The organizers said that they invited me because they thought I would say something different from my colleagues at the event. They were correct. After all, academia is dominated by the Left, and racial preferences are the sacred cow of the Left, whereas I am a libertarian who sincerely believes that racial preferences are unconstitutional. More importantly, Clarence Thomas thinks they are unconstitutional, and he is coming closer with each passing Term to convincing a majority of his colleagues on the U.S. Supreme Court of this fact.

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*Professor of Law, Ohio Northern University Pettit College of Law. I thank Roger Clegg and George Dent for comments on a draft of this article. I also thank Eric Segall and his faculty colleagues at Georgia State University College of Law for inviting me to present it there on March 31, 2014, and Brown University‘s Political Theory Project for hosting me while I edited it. The article is dedicated to Peg Cain, my wonderful administrative assistant who retired in December 2013 after nearly four decades of great work at Ohio Northern University.