Ketanji Brown Jackson makes institutionalist case in last stand for affirmative action
Race-based consideration one of many factors for applicants. Jackson argues taking it away would allow some to show their background while others cannot.
Let me preface this post by saying affirmative action is dead. No one really thinks it stands a chance against litigation currently before the Supreme Court with the current 6-3 conservative majority electing to take up precedent that was resolved 25 years ago.
Justice Ketanji Brown Jackson, however, in questioning today during oral arguments before a court made a good case in a last stand for affirmative action by making what I would call an institutionalist argument to continue with use of race as a factor in college admissions.
The underlying premise of Jackson's questioning was simple: Colleges and universities have been using race as but one of many factors in admissions as part of an approach that also includes legacy status, as well as in-state versus out-of-state applicants and potential students with athletic as oppose to academic merit.
Eliminating race as a factor would close the door on allowing applicants to express that aspect of themselves as part of their background, while leaving other elements in consideration to stand. Some of these elements, such as legacy status, would more likely perpetuate a system lacking in racial diversity, so the addition of race as a consideration would help even that out.
Jackson, during arguments in the first of the two affirmative action cases argued today, Students for Fair Admissions v. University of North Carolina, raised the issue of race as but one aspect part of a grander scheme of interests at a couple points.
One way Jackson approached her questioning was comparing one hypothetical applicant, a North Carolina resident who's family has been in the state for decades and seeks to become the fifth generation in his family to graduate from the school, writing an essay based on legacy status, and another Black applicant who's a decadent of slaves and whose family has been in the state for generations, writing an essay based on racial identity.
JACKSON: 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.
I call Jackson's approach to the issue an institutionalist argument for affirmative action because 1) it's the general way by which colleges and universities have operated in the half-century since the Bakke decision in 1978 and 2) it treats race as one factor in a holistic system valuing different elements of an application. That's different from a racial justice approach that implies affirmative action should correct past wrongs and race should be placed ahead of other factors in a potential student's application.
Such an approach is also different from the perspective of opponents of affirmative action who envision an application selection based on merit alone, as if the process could be reduced to an adding machine that would predict the best applicant as the top pick and the rest in order all the way down. That's not practical by any means. The top schools can't just take the applicants with perfect GPAs and SAT scores alone without breaking it up in some way to include other elements in the student body.
One might think the approach as Jackson articulated would be more persuasive with conservative justices on the bench, but none had any appetite for anything of the sort. Based on the questioning during the arguments, conservative justices had no stomach for the idea race one as but one of many factors in evaluating student applicants.
Justice Neil Gorsuch, in fact, went the other way, envisioning with a hypothetical question a system in which college and universities would do away with other aspects of consideration in the application process to even out for the elimination of race as a factor.
GORSUCH: Universities also have all kinds of other plus factors they use, like for legacies of alumni for donors, children. For squash players, we learned there are plus factors because those we need those, too. And I guess I'm wondering, suppose a wealthy university could eliminate those preferences which tend to favor the children of wealthy, white parents and achieve diversity without race consciousness.
North Carolina Solicitor General Ryan Park, who was arguing before the court on behalf of the University of North Carolina in favor of its affirmative action policy, predictably had a hard time responding to that hypothetical question. The concept underlying Gorsuch's questioning seems like a major revolution of the admission system that would be impractical and ignore important considerations, such as financial sustainability.
Conservative justices, in particular Justices Brett Kavanaugh and Samuel Alito, also had a particular fixation on a box of the general form inviting college applicants to identify their race. An applicant completing the form could select white, Asian or Black, for example, by marking the appropriate box. To these justices, that was evidence the admissions process treated race significantly higher than other elements of diversity in evaluating an application.
Jackson, however, in questioning of the North Carolina solicitor general tamped down the significance of the box as evidence the school was treating race as a factor more significant than others.
JACKSON: So we've heard a lot about checking the box in the context of a claims that are being made in this case, and I'm just I'm concerned that at least that I might be confused about the implications of that. So first of all, this box is on the Common Application, right? It's not on North Carolina's form of any sort. Every student who fills out the Common Application form has the ability?
PARK: Correct.
......
JACKSON: You're not like doing something different with the people who check the box and put certain categories. Everybody then goes into the holistic process of looking at all kinds of other things, so that race is never the only criteria that a person is evaluated with respect to that. Is that right?
PARK: Absolutely. And we think the district court made findings on this in this regard.
JACKSON: If you check the box — I'm an African American, I'm a Latino and all the other things I live in this place, etc, etc. Even if you check that box in North Carolina's system, do you get a point automatically for having checked that box?
PARK: Absolutely. not. Absolutely not.
JACKSON: And anybody who did check the box, are they automatically entered or admitted into the university as a result?
PARK: No, no.
That's when Jackson brought things back to her initial point that eliminating race as a factor in consideration in the admissions college would disadvantage certain applicants by not allowing them to include their background in the application process.
JACKSON: But now we're entertaining a rule in which some people can say the things they want about who they are and have that valued in the system, but other people are not going to be able to because they won't be able to reveal that they're Latino or African American or whatever. And I'm worried that that creates an inequity in the system with respect to being able to express your identity and importantly, have it valued by the university when it is considering the goal of bringing in different people.
One might say the approach to affirmative action here ignores the reality on the ground, at least in some cases, that race in college admissions tends to supercede all other qualities in evaluating applicants.
At Harvard University, the party in the other lawsuit before the Supreme Court on affirmative action, the difference of the acceptance rates among different racial groups in the tiered academic index admission system can be striking. In the fourth-lowest tier, an Asian-American applicant would have 0.9 percent rate of acceptance, compared to 1.8 percent for a white applicant, 12.8 percent for a Black applicant and 5.5 percent for a Hispanic applicant.
But I would think an institutionalist approach to affirmative action, as articulated by Jackson, would suggest that disparity isn’t enough to throw the baby out with the bath water, but instead fine tune the appropriate grounds for a race as a factor.
Race as a factor in college admissions, by any estimates, is all but on the way out of the door. Now that the case has been closed with oral arguments at an end, the matter is simply waiting before the court issues its decision. But if outcome is race is no longer allowed as a factor in college admissions, it would change how our institutions have operated in past 50 years, taking away a commonly used tool to break up applicants while leaving other tools in place.