The Nation
https://www.thenation.com/article/society/kbj-dissent-affirmative-action/
SOCIETY
JUNE 29, 2023
The justice did not mince words in her dissent of the
conservative supermajority’s decision striking down affirmative action in
college admissions.
ASSOCIATE JUSTICE OF THE SUPREME COURT
KETANJI BROWN JACKSON
Ketanji Brown Jackson, associate justice of the US Supreme Court, following a State of the Union address at the US Capitol on Feb. 7, 2023. (Photographer: Jacquelyn Martin / Bloomberg / AP)
In a devastating blow to the fight for racial justice in the United States, the US Supreme Court on Friday eliminated affirmative action in higher education. In her dissenting opinion, Justice Ketanji Brown Jackson called out her conservative colleagues for “interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.” Read her dissent in its entirety below.
Gulf-sized race-based gaps exist with respect to the health,
wealth, and well-being of American citizens. They were created in the distant
past, but have indisputably been passed down to the present day through the
generations. Every moment these gaps persist is a moment in which this great
country falls short of actualizing one of its foundational principles—the
“self-evident” truth that all of us are created equal. Yet, today, the Court
determines that holistic admissions programs like the one that the University
of North Carolina (UNC) has operated, consistent with Grutter v. Bollinger, 539
U. S. 306 (2003), are a problem with respect to achievement of that aspiration,
rather than a viable solution (as has long been evident to historians,
sociologists, and policymakers alike).
Justice Sotomayor has persuasively established that nothing
in the Constitution or Title VI prohibits institutions from taking race into
account to ensure the racial diversity of admits in higher education. I join
her opinion without qualification. I write separately to expound upon the
universal benefits of considering race in this context, in response to a
suggestion that has permeated this legal action from the start. Students for
Fair Admissions (SFFA) has maintained, both subtly and overtly, that it is
unfair for a college’s admissions process to consider race as one factor in a
holistic review of its applicants.
This contention blinks both history and reality in ways too
numerous to count. But the response is simple: Our country has never been colorblind.
Given the lengthy history of state-sponsored race-based preferences in America,
to say that anyone is now victimized if a college considers whether that legacy
of discrimination has unequally advantaged its applicants fails to acknowledge
the well-documented “intergenerational transmission of inequality” that still
plagues our citizenry.
It is that inequality that admissions programs such as UNC’s
help to address, to the benefit of us all. Because the majority’s judgment
stunts that progress without any basis in law, history, logic, or justice, I
dissent.
I A
Imagine two college applicants from North Carolina, John and
James. Both trace their family’s North Carolina roots to the year of UNC’s
founding in 1789. Both love their State and want great things for its people.
Both want to honor their family’s legacy by attending the State’s flagship
educational institution. John, however, would be the seventh generation to
graduate from UNC. He is White. James would be the first; he is Black. Does the
race of these applicants properly play a role in UNC’s holistic merits-based
admissions process?
To answer that question, “a page of history is worth a
volume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921). Many
chapters of America’s history appear necessary, given the opinions that my
colleagues in the majority have issued in this case.
Justice Thurgood Marshall recounted the genesis:
“Three hundred and fifty years ago, the Negro was dragged to
this country in chains to be sold into slavery. Uprooted from his homeland and
thrust into bondage for forced labor, the slave was deprived of all legal
rights. It was unlawful to teach him to read; he could be sold away from his
family and friends at the whim of his master; and killing or maiming him was
not a crime. The system of slavery brutalized and dehumanized both master and
slave.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 387–388 (1978).
Slavery should have been (and was to many) self-evidently
dissonant with our avowed founding principles. When the time came to resolve
that dissonance, eleven States chose slavery. With the Union’s survival at
stake, Frederick Douglass noted, Black Americans in the South “were almost the
only reliable friends the nation had,” and “but for their help . . . the Rebels
might have succeeded in breaking up the Union.” After the war, Senator John
Sherman defended the proposed Fourteenth Amendment in a manner that
encapsulated our Reconstruction Framers’ highest sentiments: “We are bound by
every obligation, by [Black Americans’] service on the battlefield, by their
heroes who are buried in our cause, by their patriotism in the hours that tried
our country, we are bound to protect them and all their natural rights.”
To uphold that promise, the Framers repudiated this Court’s
holding in Dred Scott v. Sandford, 19 How. 393 (1857), by crafting
Reconstruction Amendments (and associated legislation) that transformed our
Constitution and society. Even after this Second Founding—when the need to
right historical wrongs should have been clear beyond cavil—opponents insisted
that vindicating equality in this manner slighted White Americans. So, when the
Reconstruction Congress passed a bill to secure all citizens “the same [civil]
right[s]” as “enjoyed by white citizens,” 14 Stat. 27, President Andrew Johnson
vetoed it because it “discriminat[ed] . . . in favor of the negro.”
That attitude, and the Nation’s associated retreat from
Reconstruction, made prophesy out of Congressman Thaddeus Stevens’s fear that
“those States will all . . . keep up this discrimination, and crush to death
the hated freedmen.” And this Court facilitated that retrenchment. Not just in
Plessy v. Ferguson, 163 U. S. 537 (1896), but “in almost every instance, the
Court chose to restrict the scope of the second founding.” Thus, thirteen years
pre-Plessy, in the Civil Rights Cases, 109 U. S. 3 (1883), our predecessors on
this Court invalidated Congress’s attempt to enforce the Reconstruction
Amendments via the Civil Rights Act of 1875, lecturing that “there must be some
stage . . . when [Black Americans] tak[e] the rank of a mere citizen, and
ceas[e] to be the special favorite of the laws.” Id., at 25. But Justice Harlan
knew better. He responded: “What the nation, through Congress, has sought to
accomplish in reference to [Black people] is—what had already been done in
every State of the Union for the white race—to secure and protect rights
belonging to them as freemen and citizens; nothing more.” Id., at 61
(dissenting opinion).
Justice Harlan dissented alone. And the betrayal that this
Court enabled had concrete effects. Enslaved Black people had built great
wealth, but only for enslavers. No surprise, then, that freedmen leapt at the
chance to control their own labor and to build their own financial security.
Still, White southerners often “simply refused to sell land to blacks,” even
when not selling was economically foolish. To bolster private exclusion, States
sometimes passed laws forbidding such sales. The inability to build wealth
through that most American of means forced Black people into sharecropping
roles, where they somehow always tended to find themselves in debt to the
landowner when the growing season closed, with no hope of recourse against the
ever-present cooking of the books.
Sharecropping is but one example of race-linked obstacles
that the law (and private parties) laid down to hinder the progress and
prosperity of Black people. Vagrancy laws criminalized free Black men who
failed to work for White landlords. Many States barred freedmen from hunting or
fishing to ensure that they could not live without entering de facto
re-enslavement as sharecroppers. A cornucopia of laws (e.g., banning
hitchhiking, prohibiting encouraging a laborer to leave his employer, and
penalizing those who prompted Black southerners to migrate northward) ensured that
Black people could not freely seek better lives elsewhere. And when statutes
did not ensure compliance, state-sanctioned (and private) violence did.
Thus emerged Jim Crow—a system that was, as much as anything
else, a comprehensive scheme of economic exploitation to replace the Black
Codes, which themselves had replaced slavery’s form of comprehensive economic
exploitation. Meanwhile, as Jim Crow ossified, the Federal Government was
“giving away land” on the western frontier, and with it “the opportunity for
upward mobility and a more secure future,” over the 1862 Homestead Act’s
three-quarter-century tenure. Black people were exceedingly unlikely to be
allowed to share in those benefits, which by one calculation may have
advantaged approximately 46 million Americans living today.
Despite these barriers, Black people persisted. Their
so-called Great Migration northward accelerated during and after the First
World War. Like clockwork, American cities responded with racially exclusionary
zoning (and similar policies). As a result, Black migrants had to pay
disproportionately high prices for disproportionately subpar housing. Nor did
migration make it more likely for Black people to access home ownership, as
banks would not lend to Black people, and in the rare cases banks would fund
home loans, exorbitant interest rates were charged. With Black people still
locked out of the Homestead Act giveaway, it is no surprise that, when the
Great Depression arrived, race-based wealth, health, and opportunity gaps were
the norm.
Federal and State Governments’ selective intervention
further exacerbated the disparities. Consider, for example, the federal Home
Owners’ Loan Corporation (HOLC), created in 1933. HOLC purchased mortgages
threatened with foreclosure and issued new, amortized mortgages in their place.
Not only did this mean that recipients of these mortgages could gain equity
while paying off the loan, successful full payment would make the recipient a
homeowner. Ostensibly to identify (and avoid) the riskiest recipients, the HOLC
“created color-coded maps of every metropolitan area in the nation.” Green
meant safe; red meant risky. And, regardless of class, every neighborhood with
Black people earned the red designation.
Similarly, consider the Federal Housing Administration
(FHA), created in 1934, which insured highly desirable bank mortgages.
Eligibility for this insurance required an FHA appraisal of the property to
ensure a low default risk. But, nationwide, it was FHA’s established policy to
provide “no guarantees for mortgages to African Americans, or to whites who
might lease to African Americans,” irrespective of creditworthiness. No
surprise, then, that “[b]etween 1934 and 1968, 98 percent of FHA loans went to
white Americans,” with whole cities (ones that had a disproportionately large
number of Black people due to housing segregation) sometimes being deemed
ineligible for FHA intervention on racial grounds. The Veterans Administration
operated similarly.
One more example: the Federal Home Loan Bank Board
“chartered, insured, and regulated savings and loan associations from the early
years of the New Deal.” But it did “not oppose the denial of mortgages to
African Americans until 1961” (and even then opposed discrimination
ineffectively).
The upshot of all this is that, due to government policy
choices, “[i]n the suburban-shaping years between 1930 and 1960, fewer than one
percent of all mortgages in the nation were issued to African Americans.” Thus,
based on their race, Black people were “[l]ocked out of the greatest mass-based
opportunity for wealth accumulation in American history.”
For present purposes, it is significant that, in so
excluding Black people, government policies affirmatively operated—one could
say, affirmatively acted—to dole out preferences to those who, if nothing else,
were not Black. Those past preferences carried forward and are reinforced today
by (among other things) the benefits that flow to homeowners and to the holders
of other forms of capital that are hard to obtain unless one already has
assets.
This discussion of how the existing gaps were formed is
merely illustrative, not exhaustive. I will pass over Congress’s repeated
crafting of family-, worker-, and retiree-protective legislation to channel
benefits to White people, thereby excluding Black Americans from what was
otherwise “a revolution in the status of most working Americans.” I will also
skip how the G. I. Bill’s “creation of . . . middle-class America” (by giving
$95 billion to veterans and their families between 1944 and 1971) was
“deliberately designed to accommodate Jim Crow.” So, too, will I bypass how
Black people were prevented from partaking in the consumer credit market—a
market that helped White people who could access it build and protect wealth.
Nor will time and space permit my elaborating how local officials’ racial
hostility meant that even those benefits that Black people could formally
obtain were unequally distributed along racial lines. And I could not possibly
discuss every way in which, in light of this history, facially race-blind
policies still work race-based harms today (e.g., racially disparate tax-system
treatment; the disproportionate location of toxic-waste facilities in Black
communities; or the deliberate action of governments at all levels in designing
interstate highways to bisect and segregate Black urban communities).
The point is this: Given our history, the origin of
persistent race-linked gaps should be no mystery. It has never been a
deficiency of Black Americans’ desire or ability to, in Frederick Douglass’s
words, “stand on [their] own legs.” Rather, it was always simply what Justice
Harlan recognized 140 years ago—the persistent and pernicious denial of “what
had already been done in every State of the Union for the white race.” Civil
Rights Cases, 109 U. S., at 61 (dissenting opinion).
B
History speaks. In some form, it can be heard forever. The
race-based gaps that first developed centuries ago are echoes from the past
that still exist today. By all accounts, they are still stark.
Start with wealth and income. Just four years ago, in 2019,
Black families’ median wealth was approximately $24,000. For White families,
that number was approximately eight times as much (about $188,000). These
wealth disparities “exis[t] at every income and education level,” so, “[o]n
average, white families with college degrees have over $300,000 more wealth
than black families with college degrees.” This disparity has also accelerated
over time—from a roughly $40,000 gap between White and Black household median
net worth in 1993 to a roughly $135,000 gap in 2019. Median income numbers from
2019 tell the same story: $76,057 for White households, $98,174 for Asian
households, $56,113 for Latino households, and $45,438 for Black households.
These financial gaps are unsurprising in light of the link
between home ownership and wealth. Today, as was true 50 years ago, Black home
ownership trails White home ownership by approximately 25 percentage points.
Moreover, Black Americans’ homes (relative to White Americans’) constitute a
greater percentage of household wealth, yet tend to be worth less, are subject
to higher effective property taxes, and generally lost more value in the Great
Recession.
From those markers of social and financial unwellness flow
others. In most state flagship higher educational institutions, the percentage
of Black undergraduates is lower than the percentage of Black high school
graduates in that State. Black Americans in their late twenties are about half
as likely as their White counterparts to have college degrees. And because
lower family income and wealth force students to borrow more, those Black
students who do graduate college find themselves four years out with about
$50,000 in student debt—nearly twice as much as their White compatriots.
As for postsecondary professional arenas, despite being
about 13% of the population, Black people make up only about 5% of lawyers.
Such disparity also appears in the business realm: Of the roughly 1,800 chief
executive officers to have appeared on the well-known Fortune 500 list, fewer
than 25 have been Black (as of 2022, only six are Black). Furthermore, as the
COVID–19 pandemic raged, Black-owned small businesses failed at dramatically
higher rates than White-owned small businesses, partly due to the
disproportionate denial of the forgivable loans needed to survive the economic
downturn.
Health gaps track financial ones. When tested, Black
children have blood lead levels that are twice the rate of White
children—“irreversible” contamination working irremediable harm on developing
brains. Black (and Latino) children with heart conditions are more likely to
die than their White counterparts. Race-linked mortality-rate disparity has
also persisted, and is highest among infants.
So, too, for adults: Black men are twice as likely to die
from prostate cancer as White men and have lower 5-year cancer survival rates.
Uterine cancer has spiked in recent years among all women—but has spiked
highest for Black women, who die of uterine cancer at nearly twice the rate of
“any other racial or ethnic group.” Black mothers are up to four times more
likely than White mothers to die as a result of childbirth. And COVID killed
Black Americans at higher rates than White Americans.
“Across the board, Black Americans experience the highest
rates of obesity, hypertension, maternal mortality, infant mortality, stroke,
and asthma.” These and other disparities—the predictable result of opportunity
disparities— lead to at least 50,000 excess deaths a year for Black Americans
vis-à-vis White Americans. That is 80 million excess years of life lost from
just 1999 through 2020.
Amici tell us that “race-linked health inequities pervad[e]
nearly every index of human health” resulting “in an overall reduced life
expectancy for racial and ethnic minorities that cannot be explained by
genetics.” Meanwhile—tying health and wealth together—while she lays dying, the
typical Black American “pay[s] more for medical care and incur[s] more medical
debt.”
C
We return to John and James now, with history in hand. It is
hardly John’s fault that he is the seventh generation to graduate from UNC. UNC
should permit him to honor that legacy. Neither, however, was it James’s (or
his family’s) fault that he would be the first. And UNC ought to be able to
consider why.
Most likely, seven generations ago, when John’s family was
building its knowledge base and wealth potential on the university’s campus,
James’s family was enslaved and laboring in North Carolina’s fields. Six
generations ago, the North Carolina “Redeemers” aimed to nullify the results of
the Civil War through terror and violence, marauding in hopes of excluding all
who looked like James from equal citizenship. Five generations ago, the North
Carolina Red Shirts finished the job. Four (and three) generations ago, Jim
Crow was so entrenched in the State of North Carolina that UNC “enforced its
own Jim Crow regulations.” Two generations ago, North Carolina’s Governor still
railed against “‘integration for integration’s sake’”—and UNC Black enrollment
was minuscule. So, at bare minimum, one generation ago, James’s family was six
generations behind because of their race, making John’s six generations ahead.
These stories are not every student’s story. But they are
many students’ stories. To demand that colleges ignore race in today’s
admissions practices—and thus disregard the fact that racial disparities may
have mattered for where some applicants find themselves today—is not only an
affront to the dignity of those students for whom race matters. It also
condemns our society to never escape the past that explains how and why race
matters to the very concept of who “merits” admission.
Permitting (not requiring) colleges like UNC to assess merit
fully, without blinders on, plainly advances (not thwarts) the Fourteenth
Amendment’s core promise. UNC considers race as one of many factors in order to
best assess the entire unique import of John’s and James’s individual lives and
inheritances on an equal basis. Doing so involves acknowledging (not ignoring)
the seven generations’ worth of historical privileges and disadvantages that each
of these applicants was born with when his own life’s journey started a mere 18
years ago.
II
Recognizing all this, UNC has developed a holistic review
process to evaluate applicants for admission. Students must submit standardized
test scores and other conventional information. But applicants are not required
to submit demographic information like gender and race. UNC considers whatever
information each applicant submits using a non-exhaustive list of 40 criteria
grouped into eight categories: “academic performance, academic program,
standardized testing, extracurricular activity, special talent, essay criteria,
background, and personal criteria.
Drawing on those 40 criteria, a UNC staff member evaluating
John and James would consider, with respect to each, his “engagement outside
the classroom; persistence of commitment; demonstrated capacity for leadership;
contributions to family, school, and community; work history; [and his] unique
or unusual interests.” Relevant, too, would be his “relative advantage or
disadvantage, as indicated by family income level, education history of family
members, impact of parents/guardians in the home, or formal education
environment; experience of growing up in rural or center-city locations; [and
his] status as child or stepchild of Carolina alumni.” The list goes on. The
process is holistic, through and through.
So where does race come in? According to UNC’s
admissions-policy document, reviewers may also consider “the race or ethnicity
of any student” (if that information is provided) in light of UNC’s interest in
diversity. And, yes, “the race or ethnicity of any student may—or may
not—receive a ‘plus’ in the evaluation process depending on the individual
circumstances revealed in the student’s application.” Stephen Farmer, the head
of UNC’s Office of Undergraduate Admissions, confirmed at trial (under oath)
that UNC’s admissions process operates in this fashion.
Thus, to be crystal clear: Every student who chooses to
disclose his or her race is eligible for such a race-linked plus, just as any
student who chooses to disclose his or her unusual interests can be credited
for what those interests might add to UNC. The record supports no intimation to
the contrary. Eligibility is just that; a plus is never automatically awarded,
never considered in numerical terms, and never automatically results in an
offer of admission. There are no race-based quotas in UNC’s holistic review
process. In fact, during the admissions cycle, the school prevents anyone who
knows the overall racial makeup of the admitted student pool from reading any
applications.
More than that, every applicant is also eligible for a
diversity-linked plus (beyond race) more generally. And, notably, UNC
understands diversity broadly, including “socioeconomic status,
first-generation college status . . . political beliefs, religious beliefs . .
. diversity of thoughts, experiences, ideas, and talents.”
A plus, by its nature, can certainly matter to an admissions
case. But make no mistake: When an applicant chooses to disclose his or her
race, UNC treats that aspect of identity on par with other aspects of applicants’
identity that affect who they are (just like, say, where one grew up, or
medical challenges one has faced). And race is considered alongside any other
factor that sheds light on what attributes applicants will bring to the campus
and whether they are likely to excel once there. A reader of today’s majority
opinion could be forgiven for misunderstanding how UNC’s program really works,
or for missing that, under UNC’s holistic review process, a White student could
receive a diversity plus while a Black student might not.
UNC does not do all this to provide handouts to either John
or James. It does this to ascertain who among its tens of thousands of
applicants has the capacity to take full advantage of the opportunity to
attend, and contribute to, this prestigious institution, and thus merits
admission. And UNC has concluded that ferreting this out requires understanding
the full person, which means taking seriously not just SAT scores or whether
the applicant plays the trumpet, but also any way in which the applicant’s
race-linked experience bears on his capacity and merit. In this way, UNC is
able to value what it means for James, whose ancestors received no race-based
advantages, to make himself competitive for admission to a flagship school nevertheless.
Moreover, recognizing this aspect of James’s story does not preclude UNC from
valuing John’s legacy or any obstacles that his story reflects.
So, to repeat: UNC’s program permits, but does not require,
admissions officers to value both John’s and James’s love for their State,
their high schools’ rigor, and whether either has overcome obstacles that are
indicative of their “persistence of commitment.” It permits, but does not
require, them to value John’s identity as a child of UNC alumni (or, perhaps,
if things had turned out differently, as a first-generation White student from
Appalachia whose family struggled to make ends meet during the Great
Recession). And it permits, but does not require, them to value James’s
race—not in the abstract, but as an element of who he is, no less than his love
for his State, his high school courses, and the obstacles he has overcome.
Understood properly, then, what SFFA caricatures as an
unfair race-based preference cashes out, in a holistic system, to a personalized
assessment of the advantages and disadvantages that every applicant might have
received by accident of birth plus all that has happened to them since. It
ensures a full accounting of everything that bears on the individual’s
resilience and likelihood of enhancing the UNC campus. It also forecasts his
potential for entering the wider world upon graduation and making a meaningful
contribution to the larger, collective, societal goal that the Equal Protection
Clause embodies (its guarantee that the United States of America offers
genuinely equal treatment to every person, regardless of race).
Furthermore, and importantly, the fact that UNC’s holistic
process ensures a full accounting makes it far from clear that any particular
applicant of color will finish ahead of any particular non-minority applicant.
For example, as the District Court found, a higher percentage of the most
academically excellent in-state Black candidates (as SFFA’s expert defined
academic excellence) were denied admission than similarly qualified White and
Asian American applicants. That, if nothing else, is indicative of a genuinely
holistic process; it is evidence that, both in theory and in practice, UNC
recognizes that race—like any other aspect of a person—may bear on where both John
and James start the admissions relay, but will not fully determine whether
either eventually crosses the finish line.
III
A
The majority seems to think that race blindness solves the
problem of race-based disadvantage. But the irony is that requiring colleges to
ignore the initial race-linked opportunity gap between applicants like John and
James will inevitably widen that gap, not narrow it. It will delay the day that
every American has an equal opportunity to thrive, regardless of race.
SFFA similarly asks us to consider how much longer UNC will
be able to justify considering race in its admissions process. Whatever the
answer to that question was yesterday, today’s decision will undoubtedly extend
the duration of our country’s need for such race consciousness, because the
justification for admissions programs that account for race is inseparable from
the race-linked gaps in health, wealth, and well-being that still exist in our
society (the closure of which today’s decision will forestall).
To be sure, while the gaps are stubborn and pernicious,
Black people, and other minorities, have generally been doing better. But those
improvements have only been made possible because institutions like UNC have
been willing to grapple forthrightly with the burdens of history. SFFA’s
complaint about the “indefinite” use of race-conscious admissions programs,
then, is a non sequitur. These programs respond to deep-rooted, objectively
measurable problems; their definite end will be when we succeed, together, in
solving those problems.
Accordingly, while there are many perversities of today’s
judgment, the majority’s failure to recognize that programs like UNC’s carry
with them the seeds of their own destruction is surely one of them. The
ultimate goal of recognizing James’s full story and (potentially) admitting him
to UNC is to give him the necessary tools to contribute to closing the equity
gaps discussed in Part I, supra, so that he, his progeny—and therefore all
Americans—can compete without race mattering in the future. That
intergenerational project is undeniably a worthy one.
In addition, and notably, that end is not fully achieved
just because James is admitted. Schools properly care about preventing racial
isolation on campus because research shows that it matters for students’
ability to learn and succeed while in college if they live and work with at
least some other people who look like them and are likely to have similar
experiences related to that shared characteristic. Equally critical, UNC’s
program ensures that students who don’t share the same stories (like John and
James) will interact in classes and on campus, and will thereby come to
understand each other’s stories, which amici tell us improves cognitive
abilities and critical-thinking skills, reduces prejudice, and better prepares
students for postgraduate life.
Beyond campus, the diversity that UNC pursues for the
betterment of its students and society is not a trendy slogan. It saves lives.
For marginalized communities in North Carolina, it is critically important that
UNC and other area institutions produce highly educated professionals of color.
Research shows that Black physicians are more likely to accurately assess Black
patients’ pain tolerance and treat them accordingly (including, for example,
prescribing them appropriate amounts of pain medication). For high-risk Black
newborns, having a Black physician more than doubles the likelihood that the
baby will live, and not die. Studies also confirm what common sense counsels:
Closing wealth disparities through programs like UNC’s—which, beyond
diversifying the medical profession, open doors to every sort of
opportunity—helps address the aforementioned health disparities (in the long
run) as well.
Do not miss the point that ensuring a diverse student body
in higher education helps everyone, not just those who, due to their race, have
directly inherited distinct disadvantages with respect to their health, wealth,
and wellbeing. Amici explain that students of every race will come to have a
greater appreciation and understanding of civic virtue, democratic values, and
our country’s commitment to equality. The larger economy benefits, too: When it
comes down to the brass tacks of dollars and cents, ensuring diversity will, if
permitted to work, help save hundreds of billions of dollars annually (by
conservative estimates).
Thus, we should be celebrating the fact that UNC, once a
stronghold of Jim Crow, has now come to understand this. The flagship
educational institution of a former Confederate State has embraced its
constitutional obligation to afford genuine equal protection to applicants,
and, by extension, to the broader polity that its students will serve after
graduation. Surely that is progress for a university that once engaged in the
kind of patently offensive race-dominated admissions process that the majority
decries.
With its holistic review process, UNC now treats race as
merely one aspect of an applicant’s life, when race played a totalizing,
all-encompassing, and singularly determinative role for applicants like James
for most of this country’s history: No matter what else was true about him,
being Black meant he had no shot at getting in (the ultimate race-linked uneven
playing field). Holistic programs like UNC’s reflect the reality that Black
students have only relatively recently been permitted to get into the
admissions game at all. Such programs also reflect universities’ clear-eyed
optimism that, one day, race will no longer matter.
So much upside. Universal benefits ensue from holistic
admissions programs that allow consideration of all factors material to merit
(including race), and that thereby facilitate diverse student populations. Once
trained, those UNC students who have thrived in the university’s diverse learning
environment are well equipped to make lasting contributions in a variety of
realms and with a variety of colleagues, which, in turn, will steadily decrease
the salience of race for future generations. Fortunately, UNC and other
institutions of higher learning are already on this beneficial path. In fact,
all that they have needed to continue moving this country forward (toward full
achievement of our Nation’s founding promises) is for this Court to get out of
the way and let them do their jobs. To our great detriment, the majority cannot
bring itself to do so.
B
The overarching reason the majority gives for becoming an
impediment to racial progress—that its own conception of the Fourteenth
Amendment’s Equal Protection Clause leaves it no other option—has a wholly
self-referential, two-dimensional flatness. The majority and concurring
opinions rehearse this Court’s idealistic vision of racial equality, from Brown
forward, with appropriate lament for past indiscretions. See, e.g., ante, at
11. But the race-linked gaps that the law (aided by this Court) previously
founded and fostered—which indisputably define our present reality—are
strangely absent and do not seem to matter.
With let-them-eat-cake obliviousness, today, the majority
pulls the ripcord and announces “colorblindness for all” by legal fiat. But
deeming race irrelevant in law does not make it so in life. And having so
detached itself from this country’s actual past and present experiences, the
Court has now been lured into interfering with the crucial work that UNC and
other institutions of higher learning are doing to solve America’s real-world
problems.
No one benefits from ignorance. Although formal race-linked
legal barriers are gone, race still matters to the lived experiences of all
Americans in innumerable ways, and today’s ruling makes things worse, not
better. The best that can be said of the majority’s perspective is that it
proceeds (ostrich-like) from the hope that preventing consideration of race
will end racism. But if that is its motivation, the majority proceeds in vain.
If the colleges of this country are required to ignore a thing that matters, it
will not just go away. It will take longer for racism to leave us. And,
ultimately, ignoring race just makes it matter more.
The only way out of this morass—for all of us—is to stare at
racial disparity unblinkingly, and then do what evidence and experts tell us is
required to level the playing field and march forward together, collectively
striving to achieve true equality for all Americans. It is no small irony that
the judgment the majority hands down today will forestall the end of race-based
disparities in this country, making the colorblind world the majority wistfully
touts much more difficult to accomplish.
* * *
As the Civil War neared its conclusion, General William T.
Sherman and Secretary of War Edwin Stanton convened a meeting of Black leaders
in Savannah, Georgia. During the meeting, someone asked Garrison Frazier, the
group’s spokesperson, what “freedom” meant to him. He answered, “‘placing us
where we could reap the fruit of our own labor, and take care of ourselves . .
. to have land, and turn it and till it by our own labor.’”
Today’s gaps exist because that freedom was denied far
longer than it was ever afforded. Therefore, as Justice Sotomayor correctly and
amply explains, UNC’s holistic review program pursues a righteous
end—legitimate “‘because it is defined by the Constitution itself. The end is
the maintenance of freedom.’” Jones v. Alfred H. Mayer Co., 392 U. S. 409,
443–444 (1968) (quoting Cong. Globe, 39th Cong., 1st Sess., 1118 (1866) (Rep.
Wilson)).
Viewed from this perspective, beleaguered admissions
programs such as UNC’s are not pursuing a patently unfair, ends-justified ideal
of a multiracial democracy at all. Instead, they are engaged in an earnest
effort to secure a more functional one. The admissions rubrics they have
constructed now recognize that an individual’s “merit”—his ability to succeed
in an institute of higher learning and ultimately contribute something to our
society—cannot be fully determined without understanding that individual in
full. There are no special favorites here.
UNC has thus built a review process that more accurately
assesses merit than most of the admissions programs that have existed since
this country’s founding. Moreover, in so doing, universities like UNC create
pathways to upward mobility for long excluded and historically disempowered
racial groups. Our Nation’s history more than justifies this course of action.
And our present reality indisputably establishes that such programs are still
needed—for the general public good—because after centuries of state-sanctioned
(and enacted) race discrimination, the aforementioned intergenerational
race-based gaps in health, wealth, and well-being stubbornly persist.
Rather than leaving well enough alone, today, the majority
is having none of it. Turning back the clock (to a time before the legal
arguments and evidence establishing the soundness of UNC’s holistic admissions
approach existed), the Court indulges those who either do not know our Nation’s
history or long to repeat it. Simply put, the race-blind admissions stance the
Court mandates from this day forward is unmoored from critical real-life
circumstances. Thus, the Court’s meddling not only arrests the noble
generational project that America’s universities are attempting, it also
launches, in effect, a dismally misinformed sociological experiment.
Time will reveal the results. Yet the Court’s own missteps
are now both eternally memorialized and excruciatingly plain. For one
thing—based, apparently, on nothing more than Justice Powell’s initial say
so—it drastically discounts the primary reason that the racial-diversity
objectives it excoriates are needed, consigning race-related historical
happenings to the Court’s own analytical dustbin. Also, by latching onto
arbitrary timelines and professing insecurity about missing metrics, the Court
sidesteps unrefuted proof of the compelling benefits of holistic admissions
programs that factor in race (hard to do, for there is plenty), simply
proceeding as if no such evidence exists. Then, ultimately, the Court surges to
vindicate equality, but Don Quixote style—pitifully perceiving itself as the
sole vanguard of legal high ground when, in reality, its perspective is not
constitutionally compelled and will hamper the best judgments of our
world-class educational institutions about who they need to bring onto their
campuses right now to benefit every American, no matter their race.
The Court has come to rest on the bottom-line conclusion
that racial diversity in higher education is only worth potentially preserving
insofar as it might be needed to prepare Black Americans and other
underrepresented minorities for success in the bunker, not the boardroom (a
particularly awkward place to land, in light of the history the majority opts
to ignore). It would be deeply unfortunate if the Equal Protection Clause
actually demanded this perverse, ahistorical, and counterproductive outcome. To
impose this result in that Clause’s name when it requires no such thing, and to
thereby obstruct our collective progress toward the full realization of the
Clause’s promise, is truly a tragedy for us all.
https://www.thenation.com/article/society/kbj-dissent-affirmative-action/
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Ketanji Brown Jackson
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Ketanji Brown Jackson is an associate justice of the Supreme Court of the United States.
