Ketanji Brown Jackson asks the right question about affirmative action

WASHINGTON >> The Supreme Court’s newest member, Justice Ketanji Brown Jackson, got to the heart of the matter in Monday’s oral arguments over affirmative action in college admissions: Does the nation’s long history of racial discrimination still matter?

The court’s conservative majority seems poised to tell universities they may no longer consider race as a factor in admissions. But if any justices end up having second thoughts, it might be because of a hypothetical situation Jackson posited to Students for Fair Admissions attorney Patrick Strawbridge, who argued for banning the University of North Carolina and Harvard University’s affirmative action policies.

Jackson’s riddle: One applicant writes in his essay that it is important to him that he be admitted because his family has lived in North Carolina since before the Civil War and he would be the fifth generation of his family to proudly attend UNC. Another applicant writes that his family, too, has lived in North Carolina since before the Civil War, and it is important to him that he attend UNC because he is the descendant of enslaved people and his ancestors were barred from attending the university. Was Strawbridge arguing that the university could give preference to the first candidate but not to the second?

Strawbridge hemmed and hawed but acknowledged that, yes, that was his position. He said that nothing prohibits “honoring those who have overcome slavery or recognizing its past contribution to racial segregation” in other contexts but that this is not “a basis to make decisions about admission of students who are born in 2003.”

That makes no earthly sense. It is a historical fact that race has mattered massively, decisively and tragically in this country since its founding, and in ways that continue to shape the lives of young people today. If the court decides that race is now irrelevant and must be ignored, it negates that history by pretending it does not still resonate.

The fact is that universities have admissions policies that greatly favor wealthy White applicants — “legacies” whose parents attended the school; sons and daughters of major donors; applicants who are good at arcane sports not offered at the high schools most minority students attend. One of the court’s most conservative members noted this reality. If those preferences were ended, Justice Neil Gorsuch observed: “We just would have a crummy squash team and no art museum. Then what?”

The answer: Universities might have more room in their freshman classes to address alleged discrimination against qualified Asian American applicants. Fairness would suggest that ending preferences for the wealthy and well-connected is a better remedy than ending policies designed to provide opportunity for underrepresented applicants.

The court’s three liberal justices —- Jackson, Sonia Sotomayor and Elena Kagan — tried to press home the continuing reality of structural racism. But the conservatives sounded impatient with the idea that any measure of race-consciousness is still necessary.

“I don’t know how you can say the program will ever end,” Chief Justice John Roberts told North Carolina Solicitor General Ryan Park, who was defending UNC’s admissions policies. “You’re always going to have to look at race because you say race matters.”

Justice Amy Coney Barrett cited the court’s 2003 Grutter v. Bollinger ruling that allowed limited use of race as a factor in college admissions but predicted that such preferences would probably not be needed 25 years from then. “All governmental use of race must have a logical end point,” she read from Grutter, before asking: “When is your sunset? How do you know when you’re done? I appreciate that you’re undertaking all those efforts, but when is the end point?”

How about when the racial wealth gap is closed? As a report last year by the Federal Reserve pointed out, “The average Black and Hispanic or Latino households earn about half as much as the average White household and own only about 15 to 20 percent as much net wealth.” What about when the mean SAT scores for Black, Hispanic and American Indian/Alaska Native high school students consistently are on par with those of White and Asian students? Maybe when we are a generation removed from the vast racial inequities of mass incarceration?

That’s the honest answer: Affirmative action is a very late-in-the-game intervention to try to prevent larger inequities from replicating themselves inside a small number of elite institutions. Affirmative action will no longer be necessary when the larger conditions that make it necessary have been done away with.

I wish we lived in a society where race was irrelevant, but we do not. As Jackson’s thought experiment demonstrated, racism has left a deep and enduring imprint. Members of the Supreme Court’s conservative majority might close their eyes and ears, but they cannot wish away our history — or our present.