Ketanji Brown Jackson clashes with anti-affirmative action lawyer during Supreme Court arguments
S E E D E D C O N T E N T
Justice Ketanji Brown Jackson Monday clashed with a lawyer for a student group seeking to end affirmative action in college admissions, as the justice challenged whether the group has "standing" to sue.
"Why is it that race is doing anything different to your members' ability to compete in this environment," in comparison to a number of other factors involved in admissions, Jackson asked Students for Fair Admissions (SFFA) lawyer, Patrick Strawbridge.
"It's in the context of all of the other factors…the admissions office is looking at," Jackson added. "You haven't demonstrated or shown one situation in which all they look at is race. They're looking at the full person."
Jackson also said that SFFA seemed to be looking for "special standing" in the case. Standing is a legal term for the "harm" suffered by one person that allows the person to sue in court to have it remedied.
Justice Ketanji Brown Jackson Monday pressed a lawyer for a student group on if its members had standing to sue over colleges' affirmative action policies. (AP Photo/Andrew Harnik)
Strawbridge admitted that race is almost never the only factor in a college admission decision. However, he argued that the fact it is one factor that tips the scales unfairly for at least some applicants.
"It makes no sense in a zero-sum game. If we are going to consider race, and we argue that a racial classification - which is highly disfavored at law because of its necessarily invidious nature - is going to be used, it clearly must be doing some work," Strawbridge told Jackson.
Strawbridge argued schools that use affirmative action are "making distinctions upon who it will admit at least in part on the race of the applicant. Some races get a benefit. Some races do not get a benefit."
Jackson was one of the most vocal justices during the early stages of Monday's argument, going back and forth with Strawbridge on several occasions.
Later, she and Strawbridge sparred over whether UNC puts race in front of application reviewers.
"I didn't see that they were shooting for a particular target, or that there was a goal. I thought, in fact, that as the reviewers went through the process they didn't even know how many other students of color had been admitted," Jackson said. "They're not operating the system, I thought, to reach toward some sort of racial goal."
Strawbridge said the university only implemented its current policy as Jackson described until after SFFA filed its lawsuit.
Jackson also noted that schools often consider students' non-race characteristics, including whether they are veterans and if they are parents, in admissions.
"What you're advocating, is that in the context of a holistic review process, the university can take into account and value all of the other background and personal characteristics of other applicants, but they can't value race," Jackson added. "What I'm worried about, is that seems to me to have the potential of causing more of an equal protection problem than it's actually solving."
Jackson also posed a hypothetical with two applicants, both of whom are from North Carolina - one who's a descendant of slaves and another with generations of relatives who attended UNC. The descendant of slaves, Jackson said, might have his background excluded because that background is "bound up" in his race as a Black man.
"In almost exactly the same set of circumstances, a student - an applicant - who is African-American and who would like to have the fact that he's been in North Carolina in generations through his family, and they've never had a chance to go to this school, honored and considered, and it's bound up with his race," Jackson continued. "You say, I think, that he's not allowed to say that, and that the university is not allowed to take that into account."
Strawbridge responded that UNC could consider students who would be the first generation in their family to go to college, and if they are economically disadvantaged. But, Strawbridge said, race shouldn't be relevant in the 21st century.
"Is that a basis to make decisions about admission of students who are born in 2003, and I don't think that it necessarily is," he said.
The Supreme Court is hearing two cases in which SFFA is suing a major university over its policy of including race as a factor in admissions decisions. The first case Monday was against the University of North Carolina. The court is hearing a similar case against Harvard immediately following the UNC case.
SFFA says that it, "is a coalition of prospective applicants and applicants to higher education institutions who were denied admission to higher education institutions, their parents, and other individuals who support the organization's purpose and mission of eliminating racial discrimination in higher education admissions. SFFA has members throughout the country."
The group also said in its initial filing against UNC that its membership includes at least one White student who was denied admission to the university. The Harvard case set to be argued later Monday focuses more on how Harvard's policies allegedly harm Asian American applicants.
Those who support the use of affirmative action in college admissions cite multiple past Supreme Court precedents that say it is permissible.
Affirmative action supporters also say it is important to ensure diversity at universities, which serve as pipelines to key leadership positions in society.
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Affirmative action in college admissions violates Title VI of the Civil Rights Act, which prohibits recipients of federal aid from discriminating by race.
You'd first need to prove the discrimination. What race of people are forbidden from attending these colleges?
You still don't know why this case is before the Court? Asian Americans have been discriminated against. It has been argued that Asian Americans have to score as much as 450 points higher on the SAT to have a similar chance of admission as black students. They are being punished for their success/their work ethic.
BTW your comments are all we have to know about division.
So no Asian Americans have been admitted to these colleges?
That's a different argument than the one you put forth.
Sure. You're the expert at division so it must be true.
What race of people are forbidden from attending these colleges?
that’s not the standard.
Oh, is that the standard? Again, Here:
It has been argued that Asian Americans have to score as much as 450 points higher on the SAT to have a similar chance of admission as black students.
That's a different argument than the one you put forth.
I'm putting forth THEIR argument...The one before the Court...The one the radical Racist is arguing with their lawyers over!
Sure. You're the expert at division so it must be true.
Reading your hatefilled comments has made me an expert.
Okay... I admit a mistake of attendance instead of federal aid. The argument put forth by Vic was -
So then which is race is prohibited from federal aid?
Make up your mind, which is it? Are they prohibited as YOU put forth or are they being discriminate based on quotas as per the court argument? There is a difference. One argument is divisive and one argument is legal.
It's the schools that are the recipients of the federal aid that can't discriminate, NOT the student.
SMH context is everything.
No, total discrimination is not necessary.
For instance, a small percentage of blacks were able to pass Jim Crow literacy tests and vote. Are you arguing the Jim Crow policies that prevented almost every blacks person from voting were legal because a tiny percentage of blacks were allowed to vote?
you can’t get away with racial discrimination by allowing a token percentage to avoid the discrimination. Under your standard, it’d be impossible to allege racial discrimination in almost system, no matter how intentional it is.
Discrimination is discrimination. A quota obviously fits with what I said. It violates the statute. What the defense will be is that race wasn't the only consideration.
I'm predicting a 5-4 decision finding Harvard and UNC in violation of title VI of the Civil Rights Act.
That doesn't change the argument.
That wasn't my claim. Perhaps you should be directing your comment to Vic.
Prohibits:
YOU used loaded language in your quest to paint our newest justice as a racist - rather than use the actual court argument.
People can judge that for themselves, had they watched the confirmation hearings.
Here is a sample:
Back to the topic. Do you think Harvard discriminated against Asian-Americans?
You have yet to say...
You should reread what you wrote.
vis characterization is correct. Your argument is at best irrelevant.
Justice Jackson Recused Herself From a Supreme Court Case.
She is recusing herself from the Harvard half only. She will still be in on the UNC half.
That was kind of a skewed article, wasn't it?
I do not know enough about the particulars on these cases to make a fair opinion. Considering I have never applied for admission to Harvard I don't seem to be affected in any way by any ruling on college admissions and I can't get myself all worked up like partisan propaganda slingers would have me be. They'll lose out on the 2 cents they make on me clicking their link.
Why is it hard for democrats to admit that Asian Americans were discriminated against?
I thought they liked to "call out" discrimination?
They seem pretty big on doing that--IF the person discriminated against is black, brown, red, or a member of the LGBQT community.
Asian Americans don't count?
Apparently some colleges think that they are already admitting too many Asians with outstanding grades.
Merit doesn't seem as important now as making people feel better.
The main enemy of tribalism is individuality. We can only guess why Asian Americans have been so successful educationally. I think culture has a lot to do with it.
Merit doesn't seem as important now as making people feel better.
We shall see how that plays out when we have a lot of poor, uneducated white kids.
A culture that values and encourages education?
A culture that values hard personal work and getting something because you earned it?
A culture that values and respects its elders?
A culture which will spend money on education instead of weed, booze, video games, and fancy cars with really big stereos?
And I'd like to add to that:
A culture that thinks the way to overcome discrimination is through education.
That requires them to think ahead. You know most of them can't thing past 5 minutes from now.
I doubt they would like to extend all their minority privileges to a white minority.
We already have the "white" culture you cherish so much, and we have had it for hundreds of years. One thing it has brought us is the greatest disparity between rich and poor in the history of the world.
What kind of values are expressed in that fact?
Are people happier now ? Its hard to see lasting evidence of that.
You have an UNSOLVABLE problem Vic. The world you long so desperately to go back to was a world of inequality, race prejudice, exploitative business practices, air pollution, water pollution, sexual repression, anti-immigrant hysteria, second class status for women, and on and on.
America will never go back to all that. What WILL the future be? No one knows right now.
Dont be scared Vic. No one wants to hurt you.
(1) That' simply not true
(2) It's created a society where the major health problem is too much food. Think about that.
(3). What do you recommend so we are more inclusive?? Getting rid of science? Getting rid of merit based achievement Maybe sell off people into slavery? Bring back human sacrifice or the worship of a god emperor? Maybe burning widows?
How much suffering do we need to create so you won't whine about "white culture"
One great truth, as your post reveals, is that progressive don't care about what they have. They only worry that their neighbor might have more and they obsess about taking it away from them.
I dont whine about white culture. It just shouldnt dominate a non white country. ALL of the current turmoil in America can be traced to "fear of a black planet", which is a concept that has been around for a few decades, but really gained traction when it became apparent Barack Obama had a really good chance of becoming president of the United States. Suddenly it became obvious America might not be a "white" country forever. Panic ensued, leading directly to the acceptance of birtherism and then eventually to the adoption of Trumpism as the dominant political ideology of the right. It is all about the white grievance. David Jolley the ex Republican US representative and a fairly prominent never Trumper said this explicitly on Morning Joe this morning.
Why do we have all these crazy ass Trumpster extremists coming out of the woodwork since 2016? Because , to them, Trump represents hope that the white viewpoint can still prevail in America. People dont want to lose their majority status where the most ignorant white person is considered better than a college educated black brown or red person.
Racism’s Prominent Role in January 6 US Capitol Attack
There is power in truth, and the truth about the January 6, 2021 attack on the US Capitol is this: racism and a fear of growing diversity in the United States was at the heart of the violence.
What are some of the characteristics of white culture that distinguishes it from Black, Asian or Hispanic culture?
Why dont you tell us?
If there is no "white culture" why are there so many people willing to defend it and uphold it?
Are you trying to wrote about something without familiarity or are you embarrassed by what your answer would be?
I think that many Americans (White, Black, Brown, Asian) share more in common culturally, than White Americans shared with White Russians, White Saudis, or White Afghans.
The barely below the surface racism is dripping from this seed.
Harvard's argument rests on Asians being such shitty people that it consistently causes their personal score to fall so low that it allows black applicants with much lower academic qualifications to surpass them
A good question and discussion on twitter:
To make admissions completely colorblind and equal each submission would need to have no name, gender, prior school name and no prior residence information, just their grades and test scores.
Until then pretending like there hasn't been affirmative action for whites since any universities and colleges were first founded is shameful.
So here we are, 250 years after the first universities were founded which held strict affirmative action for whites only for centuries, debating whether it would be proper to give minorities who have been excluded for centuries an advantage, and what do we hear? White people screaming about how 'unfair' affirmative action is and how unfair it would be to give any advantage based on race because that would be racist! Fucking hypocrites.
Should affirmative action last forever? No, it is inherently biased, so it can only be used temporarily for course correction. It's like paddling a canoe, if the person on the right paddles twice for every one paddle on the left your trajectory will be far right. To correct this and get back to a steady forward heading you need to paddle on the left twice for every single stroke on the right to correct course. Once back on course there is no longer a need for the extra stroke on the left.
Now I don't believe it will take the 200+ years of affirmative action that whites benefited from, but clearly there is not yet equal representation in our schools and universities. It has improved a lot from 60 years ago, but we've still got a long way to go.
I think it’s much harder to make that argument than it was 50+ years ago. AA was supposed to provide new opportunities, but also to correct past injustices - to the extent that’s even possible. It’s hard to see that AA could do much more with this latter goal. As to its third goal I quote here - ensure diversity in the future, I think that also has been achieved as much as it can be.
At this point, though, it should be obvious that many (I would guess most) administrators at schools all across the country want diverse student bodies, and also want to at least be seen as reaching out to previously underserved minorities. They aren’t pursuing diverse admission policies because it is being forced on them. They are doing it because they want diverse student bodies or they think it serves them some other way.
The few SCOTUS cases we have on point have accepted this as a reasonable goal and permitted narrowly focused and flexible versions of AA. I think that’s still a reasonable approach. I don’t know of any school that is admitting incompetent unqualified people to their school just because of their race.
This unfortunately means that eminently qualified students will be denied admission sometimes, but that has always been the case. High achieving high school students - even and especially white ones - have been struggling to load up on the extra-curriculurs in their applications. They join the chess club or some other group. They work part time. They volunteer. They make art. Anything to draw attention to themselves as distinctive in some way that, frankly, doesn’t have shit to do with academics.
They are also encouraged to write admission essays that highlight their cultural heritage even if that heritage is white. They just don’t sell it as white. It’s Jewish or Russian or Italian, and so on. Maybe it’s about personal hardships like divorce or illness or homelessness. Again: things that have nothing to do with their majors or how they will perform as students.
This idea that universities are just going to admit people based on grades or test scores or something is a fantasy.