Justice Jackson’s Crucial Argument About Affirmative Action

Yesterday, an hour and a half into the marathon hearings about whether colleges can use race as a factor in admissions decisions, Justice Ketanji Brown Jackson began to rub her temples as she looked down at her notes.

“We’re entertaining a rule where some people can say what they want about who they are and have that valued in a system,” she said. “And I’m worried that that creates an inequity in the system with respect to being able to express our identity.” Black and Latino applicants would be limited if they can’t express their race in the selection process, she said. She almost laughed with exasperation. “Is that a crazy worry or is that something I should be thinking about and concerned about?”

In previous arguments this term, Jackson was a forceful voice on issues of racial discrimination and the intent of the constitutional amendments designed to protect against it. For many in favor of race-conscious admissions, she has been a welcome presence on the Court, asking, in a way, the question at the center of the cases: Have less than 50 years of affirmative action put enough of a dent in the inequality fostered over more than two centuries of racial discrimination in higher education to merit eliminating the practice?

[From the September 2021 issue: This is the end of affirmative action]

For roughly five hours, the Supreme Court heard oral arguments in cases of Students for Fair Admissions, a coalition of unnamed Asian American students brought together by the conservative legal strategist Edward Blum, against the University of North Carolina and Harvard. If the cases are successful and the justices side with SFFA—which a majority of the justices seemed quite open to in their questioning yesterday—the decision would overturn the precedent established in Regents of the University of California v. Bakke in 1978, which has been upheld for more than 40 years. Because of her previous tenure on Harvard’s Board of Overseers, Jackson recused herself from the Harvard case and sat for only the UNC case. But she did not waste the time she had.

Although relatively few colleges are selective enough to have reason to consider race in admitting students, there is significant evidence about what happens at those schools when such programs go away. Michigan and California, for example, saw precipitous declines in Black enrollment at their flagship campuses after those states banned the practice. (By SFFA’s own estimates, described during oral argument, Black enrollment at Harvard would fall from 14 to 10 percent without affirmative action.) In some ways, that’s the backdrop to Jackson’s questions. She was driving toward a fundamental statement about what the programs are for: Race-conscious admissions are designed to help students get into college, not to exclude students as a result of their existence.

Jackson’s point is well worn. In 1978, during the oral arguments in the Bakke case, Justice Thurgood Marshall identified it. In an exchange where he prodded Reynold Colvin, who argued for the plaintiff, Allan Bakke, Marshall pointed out, “You’re arguing about keeping somebody out and the other side is arguing about getting somebody in.” Colvin agreed. “So, it depends on which way you look at it, doesn’t it?”

Once again, Colvin agreed. “It depends on which way you look at the problem,” Colvin said.

Marshall’s voice changed. “It does?” he said, with a rise in inflection.

“The problem—” Colvin began to say before Marshall cut him off.

“It does?” Marshall said, frustrating Colvin. “You’re talking about your client’s rights; don’t these underprivileged people have rights too?”

Yesterday, Jackson was less direct, but no less potent, in an exchange with Patrick Strawbridge, the lawyer for SFFA. She offered a hypothetical to emphasize her point. There are two applicants who would like their family backgrounds recognized. One writes that their family has been in North Carolina since before the Civil War, and that if they were admitted to the university, they would be a fifth-generation student there. The other student is also a North Carolinian whose family has been in the state since before the Civil War—but their ancestors were enslaved and, because of years of systemic discrimination, were not allowed to attend the university. But now that they have the opportunity, they would like to attend. “As I understand your no-race-conscious-admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count.” Both applicants were qualified, Jackson offered, but the first applicant’s qualifications could be recognized in the process, whereas “the second one wouldn’t be able to [get credit for those qualifications] because his story is in many ways bound up with his race and the race of his ancestors.”

[Lee C. Bollinger and Geoffrey R. Stone: The end of affirmative action would be a disaster]

Strawbridge thought for a moment, then offered that UNC does not have to give a legacy benefit to the first applicant if it doesn’t want to. This is true, but it was not Jackson’s point: “No, but you said it was okay if they gave a legacy benefit.” Race, she said, would be the only thing that couldn’t be considered under that program. And that would disadvantage the Black student who, in a similar set of circumstances, wants “the fact that he has been in North Carolina for generations through his family” considered.

In a day filled with questions about the meaning of “true diversity” or the educational benefits of diversity, Jackson’s questions cut through the muck. Some students had historically been denied access to some of the nation’s most well-resourced institutions of higher education—feeder campuses for prominent roles throughout society–because of their race. If SFFA wins, that fact will be one of the only things a university cannot consider in its admissions process, as though that history never happened—as though the system is fair enough already.