What follow is the conclusion of Ketanji Brown Jackson’s dissenting opinion in the Supreme Court’s decision rejecting affirmative action in higher education…
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.103
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.
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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. JUSTICE SOTOMAYOR has fully explained why the majority’s analysis is legally erroneous and how UNC’s holistic review program is entirely consistent with the Fourteenth Amendment. My goal here has been to highlight the interests at stake and to show that holistic admissions programs that factor in race are warranted, just, and universally beneficial. All told, the Court’s myopic misunderstanding of what the Constitution permits will impede what experts and evidence tell us is required (as a matter of social science) to solve for pernicious race-based inequities that are themselves rooted in the persistent denial of equal protection.105
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.
NOTES
Two footnotes from the last section of Justice Jackson’s dissent.
103 JUSTICE THOMAS’s prolonged attack, ante, at 49–55 (concurring opinion), responds to a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted. He does not dispute any historical or present fact about the origins and continued existence of race-based disparity (nor could he), yet is somehow persuaded that these realities have no bearing on a fair assessment of “individual achievement,” ante, at 51. JUSTICE THOMAS’s opinion also demonstrates an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor that affects applicants’ unique life experiences. How else can one explain his detection of “an organizing principle based on race,” a claim that our society is “fundamentally racist,” and a desire for Black “victimhood” or racial “silo[s],” ante, at 49–52, in this dissent’s approval of an admissions program that advances all Americans’ shared pursuit of true equality by treating race “on par with” other aspects of identity, supra, at 18? JUSTICE THOMAS ignites too many more straw men to list, or fully extinguish, here. The takeaway is that those who demand that no one think about race (a classic pink-elephant paradox) refuse to see, much less solve for, the elephant in the room — the race-linked disparities that continue to impede achievement of our great Nation’s full potential. Worse still, by insisting that obvious truths be ignored, they prevent our problem-solving institutions from directly addressing the real import and impact of “social racism” and “government-imposed racism,” ante, at 55 (THOMAS, J., concurring), thereby deterring our collective progression toward becoming a society where race no longer matters.
105 JUSTICE SOTOMAYOR has fully explained why the majority’s analysis is legally erroneous and how UNC’s holistic review program is entirely consistent with the Fourteenth Amendment. My goal here has been to highlight the interests at stake and to show that holistic admissions programs that factor in race are warranted, just, and universally beneficial. All told, the Court’s myopic misunderstanding of what the Constitution permits will impede what experts and evidence tell us is required (as a matter of social science) to solve for pernicious race-based inequities that are themselves rooted in the persistent denial of equal protection. “[T]he potential consequences of the [majority’s] approach, as measured against the Constitution’s objectives . . . provides further reason to believe that the [majority’s] approach is legally unsound.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 858 (2007) (Breyer, J., dissenting). I fear that the Court’s folly brings our Nation to the brink of coming “full circle” once again. Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 402 (1978) (opinion of Marshall, J.).