Did Affirmative Action Really Hinder Clarence Thomas?

United States

 

The American Lawyer

June 1, 2008

 

By Tamara Loomis 

Why couldn’t Clarence Thomas get a job with a big-city law firm when he graduated from Yale in 1974? It’s not an idle question. That "time of dashed hopes and expectations," as Thomas once described it in a speech, still leaves him bitter. His frustration resonates in the autobiography that he published last fall, My Grandfather’s Son. Thomas blames Yale Law School–specifically, its affirmative action program, which sought to give up to 10 percent of first-year spots to minorities–for his difficulties securing a job as a first-year associate. Thomas has not disclosed the firms to which he applied, or how many, but he says that after applying for jobs at firms in four different cities, he was rejected everywhere.

"I’d learned the hard way that a law degree from Yale meant one thing for white graduates and another for blacks, no matter how much anyone denied it," Thomas writes in his memoir. "I’d graduated from one of America’s top law schools, but racial preference had robbed my achievement of its true value." To this day, he has kept a "15 cents" sticker from a cigar package stuck to his diploma, "to remind myself of the mistake I’d made by going to Yale."

Shortly after he arrived at the law school, Thomas writes, he realized that "blacks who benefited from [affirmative action admissions] were being judged by a double standard." As a result, Thomas writes, his law degree was basically worthless, since it "bore the taint of racial preference."

But interviews with a dozen African American lawyers who attended Yale in the same years paint a strikingly different picture. "I don’t want to discredit Clarence’s viewpoint. But his focus on Yale is somewhat disingenuous," says classmate David Jones (YLS 1974), voicing a common theme among those interviewed. "And to make [affirmative action] out to be some kind of liberal conspiracy is certainly disingenuous." Jones says that Yale "could have done better" administering its affirmative action program in those early years, but any suggestion that black students were treated differently is "crap." In fact, those interviewed describe the environment at Yale in largely positive-even glowing-terms. "It was a terrific education," says Wendy Samuel (YLS 1974). "There wasn’t the heavy competition you’d expect from a school of its caliber. People were very supportive."

As for Thomas’s argument that Yale’s affirmative action program made his law degree worthless? "Bullshit," says Daniel Johnson, Jr., a partner at the San Francisco office of Morgan, Lewis & Bockius and a 1973 graduate of the school. "I know [African American law students at Yale] who got job offers all over the country." [See "Opening Doors" sidebar. ] Among those interviewed for this story, some got their top pick, and others didn’t, but all of them got a job in the sector-public, private, or public interest-of their choice. His classmates suggest that a variety of factors might have played into Thomas’s search process, including grades, expectations, background. and experience, as well as racism. Only Thomas has blamed affirmative action.

Pointing to the "extraordinary success" of the black lawyers who attended Yale in the early 1970s, Johnson says, "We should be celebrating affirmative action at Yale Law School. Affirmative action at Yale really worked." The most telling piece of evidence: one U.S. Supreme Court justice.

Yale Law School launched its affirmative action program in 1969. Yale University declined to provide details about how the program worked, but its goal was reportedly a minority student population of 10 percent. (Today, minorities constitute about one-third of the student body.) The school used minimum standards to ensure that it offered places to only minority students with a "strong chance of succeeding," according to a 1991 New York Times interview with the late Abraham Goldstein, who served as dean from 1970 to 1975. The program got results: The number of black students grew quickly from "two or three per class" to "enough to be considered a group," says William Coleman III (YLS 1973). The 1973 class was 13 percent African American-21 of approximately 160 students. To be sure, Yale’s initial efforts to diversify its community were far from perfect. Thomas’s class-1974-had just 12 black students, and Yale struggled to bring the percentage back up to its 1973 numbers for several decades thereafter.

The early 1970s was also a tumultuous time for blacks at the law school. The events leading up to the 1970 arrest and trial in New Haven of Black Panther founder Bobby Seale for the murder of Alex Rackley set off campuswide demonstrations and sit-ins and even a moratorium on classes. (The trial ended in a hung jury, and all charges against Seale were dropped.) Campus police regularly stopped black students, mistakenly targeting them as outsiders looking for trouble. Former students recall that blacks in the 1972 law school class were particularly outspoken. According to History of the Yale Law School, by former dean Anthony Kronman, a 1975 graduate of the law school, the black students demonstrated in classrooms, conducted walk-outs, and shouted down the dean when he tried to quell a demonstration. In 1969 Eric Clay, an African American in the 1972 class and now a judge on the U.S. Court of Appeals for the Sixth Circuit, was "tried" in a highly publicized proceeding before a school disciplinary committee for telling visiting professor George Lefcoe, as Clay himself testified, that if Lefcoe "didn’t stop messing over black people in his classes, he might get his ass kicked." (Lefcoe testified that Clay had threatened to "beat the shit out of" him.) Clay got off relatively lightly-the dean put him on probation and let him stay in school-which angered many of the faculty. (Clay’s defense "lawyer," a third-year law student named Melvin Watt, is now a U.S. congressman, D-North Carolina.)

Neither was the faculty uniformly progressive, says David Jones. He recalls that professor Ralph Winter in particular was "very hostile to a large number of black students coming in." (Winter is now a senior judge on the U.S. Court of Appeals for the Second Circuit. He declined to comment for this article.) Lani Guinier (YLS 1974), the first tenured African American woman at Harvard Law School, says that she was disappointed that the school lacked civil rights courses and professors who were "deeply interested" in the issue. She was also not aware of any affirmative action toward women at Yale at the time. Guinier likens the school’s early efforts to "almost an awakening-a delayed realization that the law schools were marching out of step with the rest of the country, not just in terms of race but in terms of gender."

Growing pains notwithstanding, Yale did attract an extraordinary group of African American students in those early years of affirmative action. "Yale was considered the law school where policy wonk activists went," says Jones, who has served as president of the Community Service Society of New York for the last two decade
s. According to a survey of incoming students, he says, "87 percent of us were planning to do public service law. . . . It was a high-water mark." In addition to Thomas-only the second African American to sit on the Supreme Court-Yale’s black student population in the early 1970s has produced at least four federal judges (Eric Clay, Henry Wingate, R. Guy Cole, Jr., and Myron Thompson), two law professors (Guinier and Harlan Dalton, who teaches at Yale), and a college president (Theodore Landsmark). It also produced several partners in Am Law 100 firms, such as Rufus Cormier, Jr., the first black partner at Houston’s Baker Botts, and Johnson, the first black partner at Cooley Godward Castro Huddleston & Tatum in Palo Alto (now Cooley Godward Kronish). Their accomplishments are a testament to the abilities and ambitions of Yale’s black student population, but also to the doors the school opened for them more than 30 years ago. The dean of admissions at the time, James Thomas, an African American and 1964 graduate of the law school, pushed hard for diversity. The 1973 class also included Bill Clinton, who appointed several of his black classmates to the federal bench and high-ranking positions in his administration.

Yale doesn’t publish lists of jobs that its new graduates accept. But interviews with Thomas’s contemporaries show that black students were offered jobs at elite law firms including Cravath, Swaine & Moore, Debevoise & Plimpton, and Lord, Day & Lord in New York, and Hill & Barlow in Boston.

So why did Thomas have such a rocky start? For his part, he seems convinced that Yale’s affirmative action program was the culprit. (Thomas did not respond to requests for an interview.) According to Thomas, he applied for first-year associate positions with firms in Atlanta, and after failing to get an offer there, in Washington, D.C., New York, and Los Angeles. In his memoir, Thomas writes that, in his interviews with law firms, "one high-priced lawyer after another treated me dismissively, making it clear that they had no interest in me despite my Ivy League pedigree. Many asked pointed questions unsubtly suggesting that they doubted I was as smart as my grades indicated." Thomas’s law school grades aren’t public. In his biography of Thomas, conservative author Andrew Peyton Thomas (no relation) quotes Thomas as saying, "I was never the extraordinary student. I was kind of the guy who worked hard and did well, and sometimes very well."

Thomas’s black classmates, however, dismiss the idea that affirmative action caused his job hunt troubles. Instead, they say, other factors could have played into Thomas’s difficulties.

One possibility, Johnson says, is less-than-stellar grades. Yale had four grades: fail, low pass, pass, and honors. "The fact is, the better grades you had, the more job offers you got," says Johnson. Yale’s grading system may have inadvertently made job hunting more difficult for some students, he says, since a "pass" could mean anything from a B+ to a C.

Johnson says that his own average grades-he had "all passes" his first year at the law school-made it harder to land a law firm job upon graduation. Johnson ended up at the California state attorney general’s office, where he worked for three years. He then went to Cooley Godward Castro Huddleston & Tatum, where he flourished, becoming the firm’s first African American partner in 1981.

Other classmates suggest that another factor was at play. As a self-described "poor black kid from Georgia," Thomas didn’t fit the corporate law firm mold, and he did little to try to conform to it in law school. Thomas and his two siblings were raised by a single mother on the $10 a week she earned as a maid. At age 7, Thomas moved in with his grandfather, where life was materially more comfortable but not easy. His grandfather ran a strict household, where everyone, kids included, adhered to a strict work ethic. Thomas went on to attend College of the Holy Cross, a middle-class school full of strivers-"people like me," he writes in his memoir. At Yale, Thomas didn’t try to adopt the corporate style. It was the early seventies and he favored bib overalls and combat boots. William Coleman III (YLS 1973) describes Thomas at Yale as "a diamond in the rough." His sister, Lovida Coleman, Jr. (YLS 1975) agrees that Thomas lacked the benefit of a more privileged upbringing. "I’m used to making white people comfortable [socially]," says Coleman, whose father is a prominent lawyer. "Clarence didn’t have that advantage."

Thomas says that at Yale he "felt out of place" among the "elite." He doesn’t say exactly who he is talking about, but it’s true that a good portion of his black classmates hailed from educated families and Ivy League colleges. Lovida and William Coleman, for instance, are the children of William Coleman, Jr., who served as secretary of Transportation under President Gerald Ford and is now senior counsel at O’Melveny & Myers in Washington, D.C. Lani Guinier grew up in New York, the daughter of a lawyer and a teacher, and went to Radcliffe College. The father of Lila Coleburn (YLS 1973) was a scientist for NASA; the father of Wendy Samuel was a college professor. Edgar "Tap" Taplin, Jr. (YLS 1973) went to Yale College; he grew up in New Orleans, where his mother, Lois Taplin Bronz, was a math professor and director of admissions at Xavier University of Louisiana. David Jones, whose father was a judge and assemblyman in Brooklyn, interned for Senator Robert Kennedy before he went to Yale.

Still, many black law students grew up in more modest circumstances. Two examples: Ted Landsmark, who graduated from the architecture and law schools in 1973, was raised by a single mother in the projects in East Harlem, and Thomas’s classmate Harry Singleton was the son of a janitor and a maid. (Singleton now has his own firm in Washington, D.C.)

The law school then, as now, was home to the academic elite. It also was a venue where students could build connections that would help those who wanted to be among the political and economic elites. "The networking, should you take the opportunity, could hardly have been better," says Landsmark. He says a number of the professors "kept their doors open" to students, both black and white. Nonetheless, a student had to be savvy to how things worked, and not everyone was. "It was more like trade school than a real academic setting," says Jones. "It would be dangerous to put things on a racial divide. There were plenty of white students who didn’t have a clue how to get ahead." But Jones admits that networking was even more of a challenge for black students at the time, since they were virtually all pioneers.

As for socializing among students, Tap Taplin voices a commonly shared memory that it was "both integrated and segregated." The black students were a tightly knit group, forming their own table at lunch. White students ate together also, but that was seldom commented upon. (Taplin recalls an incident at the class’s thirtieth reunion: When he sat down with a couple of black friends, Alan Mintz, a white friend of his, walked up and jokingly said, "Wha
t is this? Hasn’t anything changed?") Many black students had white friends. For instance, William Coleman lived in a house with three white students, including Bill Clinton, who later appointed Coleman general counsel of the U.S. Army. And Lila Coleburn dated white fellow student John Weidman, whom she later married. (Both now have careers outside law. Weidman, an Emmy Award-winning writer for Sesame Street, is president of the Dramatists Guild of America; Coleburn is a psychologist.) Civil rights issues were also a hot-button item in the largely liberal Yale community-Bobby Seale’s trial radicalized the campus-and students forged bonds across racial lines through their shared work in civil rights.

By his own admission, Thomas kept a relatively low profile among his peers. His classmates remember him as "a very pleasant guy to be around" with "a big hearty laugh and big smile," and he was a regular at an informal "breakfast club," a group of early risers who ate together every morning at 6. "Clarence would already have studied for an hour," says Lovida Coleman, who was also a regular at the breakfast club. "There was no one who was a harder-working student." (She also remembers enjoying his "hilarious" descriptions of the pornographic movies that he’d seen the night before.) Generally, though, Thomas’s social life was relatively limited. When he wasn’t studying, he was spending time with his two best friends, Harry Singleton and Frank Washington, or his wife and infant son.

And other than taking traditional classes like corporate law, bankruptcy, tax, and commercial transactions, Thomas didn’t pursue a corporate law career. As he writes in his autobiography, instead of spending his second summer at a corporate firm in New York or Washington like many of his Yale classmates, he went to Hill, Jones & Farrington, a black law firm in his hometown of Savannah that handled civil rights cases. (He received an offer to join the firm but declined because his wife didn’t want to stay in Savannah.) Since he’d worked at New Haven Legal Assistance during his first summer, Thomas had no corporate experience when he interviewed for a permanent position.

Taplin says that lack of experience and contacts could have hurt Thomas’s search. Firms look for applicants who have explored their professed interest in corporate law, through summer jobs or networking, Taplin says. For his part, Taplin, who got his undergraduate degree at Yale, says he "wasn’t shy about fashioning [his] own career," taking advantage of connections he’d made with corporate lawyers while at school and elsewhere, and spending half of his second summer at Lord, Day & Lord, which he joined after graduating. (Taplin went on to become a global manager in the supply and trading group of Exxon Mobil before retiring in 2003.)

To be fair, in the early 1970s few black students at Yale had their eye on the corporate prize. "There were people who knew they were going into corporate practice, but they didn’t make a big deal of it," says Landsmark. Like a lot of students (including Thomas), Landsmark, who went to Yale as an undergraduate, says he was focused on public policy. Like Thomas, Landsmark says he hadn’t worked at a law firm prior to interviewing in his third year: "I’d worked at legal services." But Landsmark easily landed an offer from Hill & Barlow, an old-line Boston firm whose lawyers included Michael Dukakis and William Weld, both of whom later became governors of Massachusetts. It also happened to have a sizable architect client base. Given his dual degrees in architecture and law, "it was a perfect fit," says Landsmark, who now heads Boston Architectural College. Albert Moncure, Jr. (YLS 1973), who worked with migrant farm workers his second summer, went to Cravath, Swaine & Moore after graduating-the only firm Moncure says he interviewed with.

Coleman, who was a year ahead of Thomas at Yale and also worked with him during the latter’s second-year summer, says Thomas’s demeanor could have worked against him when he was interviewing. As Coleman, who specializes in employment discrimination at the plaintiffs firm Berger & Montague in Philadelphia, explains: "Law firms are not places for Mao. Once a little bit of that comes out and you’re black, they will notice. And they don’t want to take any chances." Thomas himself writes that he was an "angry young man," resentful of what he viewed as liberal white hypocrisy, condescension toward and underestimation of blacks. It was at Yale, he writes, that he first realized blacks "were being judged by a double standard." The campus scuttlebutt, for instance, was that tax professor Boris Bittker "flunks black students." To prove his abilities, Thomas writes, he went out of his way to take a course with Bittker, who (paradoxically) gave Thomas his first honors grade at Yale. The honors grade, however, failed to cause Thomas to rethink his growing conviction that many whites considered black students somehow inferior. "It was futile for me to suppose that I could escape the stigmatizing effects of racial preference," Thomas writes.

Racism could have played a part in Thomas’s fruitless job hunt. Frank Washington, one of Thomas’s closest friends at Yale, thinks it did. Washington says he interviewed at 40 firms in various cities before he finally got an offer at Arnold & Porter in Washington, D.C. "It was a pretty daunting process," says Washington. He lasted three years before taking a job as legal counsel at the Federal Communications Commission. While he was at Arnold & Porter, Washington recalls, The Washington Post ran a story about diversity problems at the firm’s D.C. office. In the article, Washington recounted an incident in which he was mistaken for a black summer associate and said the white lawyers "couldn’t tell us apart." Washington, who is now the owner of a string of broadcast television and radio stations, said he had no idea that his statement wouldn’t sit well with the powers that be, but in his exit interview, he was told, "A lot of people didn’t care for what you did."

Other black Yale graduates tell of encountering various forms of racism in the job market. Wendy Samuel, who is a light-skinned black woman, remembers being told by a partner at a big D.C. firm that she wasn’t getting an offer out of law school "because I was too light and they wouldn’t get any credit." William Coleman recalls an incident when he served as general counsel of the Army under President Clinton in the mid-nineties. He was attending a conference where he was the keynote speaker. "Someone gave me his jacket to hang up," says Coleman, "so when I went up to the podium, I said, ‘I have this person’s jacket. I don’t know what to do with it.’ "

But unlike Thomas, those interviewed say they believe that affirmative action at institutions like Yale are part of the solution, not the problem. "How is it Yale’s fault that society is not accepting of black people?" says Dan Johnson.

In fact, Yale connections helped Thomas land the job he finally took after law school-with John Danforth, a white Yale Law alumnus and, at the time, the Republican attorney general of Missouri, who traveled to the school to recruit African American lawyers to work for him. Yale also figured in Thomas’s Supreme Court appointment: George H.W. Bush, who nominated him, is an alumnus of the college.

But those law firm rejections still stick in Thomas’s craw. In a 2003 speech to graduates of the University of Georgia School of Law, Thomas says he saves the "barren husk of rejection letters" to this day. In his book, he blames the "stigmatizing effects of racial preference" for those rejections, and his Supreme Court opinions clearly demonstrate his animus toward affirmative action. That’s his personal narrative, to use the phrase of the moment, and he’s entitled to it.

His classmates, though, see those times differently. Thomas’s "belated attempt at creating a fantasy world is not the story. The story is how extraordinarily successful the blacks from that class have been," Johnson says. "How could that be the case if our law school degree was worth 15 cents?"

 

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