Brown Jackson Is Key Voice in Harvard, UNC Bias Cases

This October, the US Supreme Court hears oral argument in two lawsuits that will impact the future of affirmative action in higher education.

The cases target admissions policies at Harvard University and the University of North Carolina-Chapel Hill, and were filed by Students for Fair Admissions, an entity funded by right-wing advocacy groups.

KBJ’s Perspective Needed

The Supreme Court deconsolidated the cases in July after Justice Ketanji Brown Jackson, a Harvard graduate and recent board member, recused herself from the Harvard case. Now that the cases are split, Jackson can participate in the UNC lawsuit, which will receive separate oral argument and generate its own opinion.

Similar circumstances led the Supreme Court to deconsolidate Chiafalo v. Washington and Colorado Dept. of State v. Baca two years ago. The court initially consolidated the cases. But after Justice Sonia Sotomayor recused herself from Baca, the court split them so she could participate in Chialfalo’s oral argument and decision.

Jackson’s absence from the Harvard lawsuit is unfortunate. Her unique perspective, insight, and experience would benefit any case. In a case concerning Harvard’s right to reckon with racial inequality, it is difficult to identify a more important voice than the first Black female justice and first liberal Black justice since Thurgood Marshall.

Fortunately, deconsolidation keeps Jackson in the UNC lawsuit. It also positions the justices and litigants to surface two key elements that distinguish the cases—Harvard’s naked preferential treatment for wealthy White applicants and UNC’s local legacy of anti-Black racism.

Troubled Legacy

The cases share some common facts. Both Harvard and UNC privilege common measures of “merit,” such as grades and test scores, that understate the true academic ability of students from negatively stereotyped groups.

Even SFFA, the party suing Harvard, highlights how racial stereotypes can infiltrate subjective assessments and benefit White applicants.

When Harvard and UNC rely uncritically on such measures, they artificially inflate the relative “merit” of White students. This creates a racial preference for White applicants that absent any corrective, like affirmative action, harms more deserving and qualified students of color.

Harvard

Harvard exacerbates those white racial advantages with legacy preferences that favor the children of alumni and other privileged groups.

One of SFFA’s expert witnesses concluded that over a recent six-year period, Harvard admitted over 1,600 White Legacy+ applicants despite their inferior academic credentials. Legacy+ includes children of alumni, recruited athletes, dean’s list members, and children of faculty and staff.

This number represents roughly 33% of all White admits and exceeds all Black and Latinx admits from the same period.

SFFA’s expert concedes that Legacy+ students are “doubly advantaged.” They are rewarded for a status unrelated to any standard conception of academic merit. And well before admission, this status confers its own advantages, including access to the resources necessary to compile a competitive applicant profile.

But characterizing Legacy+ preferences as a double bonus understates the race and class advantages it awards. Harvard admits Legacy+ applicants who do less with more. This practice harms more perseverant and talented applicants of color and poor Whites who do far more with less. These compounded advantages create a triple bonus for the wealthy, White, and connected.

UNC

UNC’s legacy preferences are less impactful, but still function as a modern-day grandfather clause for White applicants. Founded on Cherokee land in 1789, UNC is one of the nation’s oldest “public” universities. The “public” moniker obscures that from 1789 through 1955, UNC was not open to the entire public.

For roughly its first 165 years, UNC formally excluded Black students. The racist attitudes that motivated this policy trace to the school’s 40 founding trustees, all wealthy White men, 30 of whom owned human property.

The White supremacist ideology that animated UNC’s founding endured. As late as the 1950s, the White Patriots of North Carolina, whose membership included UNC trustees, organized “to maintain the purity and culture of the white race and of Anglo-Saxon institutions.”

After the Supreme Court decided Brown v. Board of Education, UNC fought judicial mandates to desegregate its campus. After Congress passed the Civil Rights Act of 1964, UNC continued to defy federal orders to integrate. This confrontation prompted a decade of litigation between UNC and the federal government.

This dispute did not end because UNC achieved meaningful integration. In 1981, the Reagan administration brokered a backroom deal that excluded the NAACP and other stakeholders who had spearheaded the fight against segregation.

David Tatel, who led integration efforts for the Carter administration, commented that the deal “doesn’t read like a desegregation plan. It reads like a joint U.S.-North Carolina defense of everything the system did.”

In a lawsuit about racial equality, we ought to ask whether UNC has overcome this history. On the one hand, UNC’s admissions policy represents one step to realize a more racially inclusive campus.

But as the district court noted, UNC has a long way to go. Drawing on expert testimony, the court observed that “UNC has been a strong and active promoter of white supremacy and racist exclusion for most of its history.”

The court continued, [Though UNC’s] “faculty, administrators and trustees have made important strides to reform the institution’s racial outlook and policies ... those efforts have fallen short of repairing a deep-seated legacy of racial hostility and disrespect for people of color.”

Deconsolidation better positions the Supreme Court to grapple with UNC’s enduring legacy of racial exclusion and Harvard’s open preferences for wealthy White applicants. It is hard to imagine more relevant inquiries in cases implicating the future of affirmative action.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Jonathan Feingold is an associate professor at Boston University School of Law. He explores the relationship between race, law, and the mind sciences. Feingold’s work has been cited in US Supreme Court amicus briefs defending affirmative action.