Supreme Court Justice Clarence Thomas on Thursday used the racial makeup of the NBA as an example of why the Supreme Court may have “constructed a scheme that parcels out legal privileges to individuals on the basis of skin color” in its ruling on disparate impact claims.
In a victory for civil rights groups and fair housing activists, the Supreme Court upheld the use of disparate impact claims under the 1968 Fair Housing Act in a 5-4 ruling. They ruled that policies and practices that create racial disparities can be challenged under the law, even if there was no motive to discriminate.
But Thomas, the Court’s only black justice, said this is “wholesale inversion of our law’s usual approach” in a dissent that Justice Samuel Alito joined.
The idea that “in the absence of discrimination, an institution’s racial makeup would mirror that of society” has not happened in history because certain ethnic groups tend to veer towards certain professions and education levels, and this happens without discrimination, Thomas argued. He cited the NBA as proof of his claim.
“Racial imbalances do not always disfavor minorities. At various times in history, ‘racial or ethnic minorities…have owned or directed more than half of whole industries in particular nations,'” wrote Thomas.
“These minorities ‘have included the Chinese in Malaysia, the Lebanese in West Africa, Greeks in the Ottoman Empire, Britons in Argentina, Belgians in Russia, Jews in Poland, and Spaniards in Chile — among many others,'” he wrote. “…And in our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association (NBA) players have been black.”
“To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence,” wrote Thomas.
Thomas worried that on the basis of the Supreme Court’s decision, white basketball players could bring disparate impact suits against the NBA. Or, if they cannot, then “we as a Court have constructed a scheme that parcels out legal privileges to individuals on the basis of skin color.”
Echoing other conservative justices’ dissents this week, the famously quiet justice blasted the majority opinion’s “novel theory” in this case as only “a brief nod to the text” of the law, instead relying on what it “perceived” as the statute’s purpose.
