Facing a decision by conservative Supreme Court justices to eliminate affirmative action at colleges and universities, Justice Ketanji Brown Jackson made her argument plain on Monday when presented with ridiculous scenarios from both her peers and a lawyer representing a group challenging a landmark affirmative action case.
The Students for Fair Admissions group is challenging admissions programs considering race at Harvard and the University of North Carolina. Patrick Strawbridge, a lawyer for the group, said while it would be okay for students of color to write personal essays detailing cultural experiences, “racial classifications are wrong," and therefore, the court should overturn its decision in the case of Grutter v. Bollinger. The Supreme Court decided in the 2003 case that colleges would be permitted to consider race in admission processes aimed at improving diversity, but today’s Supreme Court appeared ready to overlook what New York Times journalist Adam Liptak described as decades of precedents to overturn the opinion.
Conservative Justice Clarence Thomas, who has been a disappointment since the moment he was nominated to fill Justice Thurgood Marshall’s seat, had this to add to the discussion of one of the most important issues the Supreme Court is taking up this session:
“I’ve heard the word diversity quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone.”
In this conversation of racial diversity at universities, the term is hardly ambiguous, and this implication that “diversity” isn’t definitive enough to have real benefits simply demonstrates how out of touch Thomas continues to be. U.S. Solicitor General Elizabeth Barchas Prelogar explained exactly what is at stake, as did Jackson.
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Prelogar said:
A blanket ban on race-conscious admissions would cause racial diversity to plummet at many of our nation’s leading educational institutions. Race-neutral alternatives right now can’t make up the difference so all students at those schools would be denied the benefits of learning in a diverse educational environment. And because college is the training ground for America’s future leaders, the negative consequences would have reverberations throughout just about every important institution in America. For the United States military, as I’ve explained, having a diverse officer corps is a critical national security imperative. For corporate America, diversity is essential to business solutions. For the medical community and scientific researchers, diversity is an essential element of innovation and delivering better health outcomes.
Jackson, who recused herself having graduated magna cum laude from Harvard and sitting on the university’s board of overseers, gave a hypothetical to illustrate what Prelogar explained.
The justice said:
And so what I'm worried about is that the rule that you're advocating, that in the context of a holistic review process, a university can take into account and value all of the other background and personal characteristics of other applicants, but they can't value race. What I’m worried about is that that seems to me to have the potential of causing more of an equal protection problem than it's actually solving. And the reason why I get to that possible conclusion is thinking about two applicants who would like to have their family backgrounds credited in this applications process. And I'm hoping to get your reaction to this hypothetical.
The first applicant says, ‘I'm from North Carolina. My family has been in this area for generations, since before the Civil War, and I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that, and given my family background, it's important to me that I get to attend this university. I want to honor my family's legacy by going to this school.’ The second applicant says, ‘I'm from North Carolina. My family’s been in this area for generations, since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African American, I now have that opportunity, and given my family background, it's important to me to attend this university. I want to honor my family legacy by going to this school.’
Now, 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. The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn't be able to because his story is in many ways bound up with his race and with the race of his ancestors. So I want to know based on how your rule would likely play out in scenarios like that why excluding consideration of race in a situation in which the person is not saying that his race is something that has impacted him in a negative way. He just wants to have it honored just like the other person has their personal background family story honored. Why is telling him no not an equal protection violation?
Justice Elena Kagan asked a similar question, but in the reverse. She asked, and The New York Times captured, whether universities could "put a thumb on the scale in admissions decisions" to make sure men weren't underrepresented. Strawbridge answered that a “less demanding legal standard” applied in that scenario as compared with the standard applying to race distinctions.
Kagan’s synopsis: “White men get the thumb on the scale, but people who have been kicked in the teeth by our society for centuries do not?”
To answer the question: Yes, that is precisely what conservatives would like.
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