Despite recusal promise Justice Brown Jackson will still vote on affirmative action case

As the Supreme Court prepares to tackle affirmative action and alleged discriminatory college admissions practices, the high court has determined that Justice Kentanji Brown Jackson will be able to rule on one of two recently decoupled cases, despite her previous pledge before the Senate Judiciary Committee to recuse herself.

As a prior member of Harvard’s Board of Overseers, Jackson said during her confirmation hearings in March that she would not participate in a case that coupled together allegations of discrimination against Harvard University and the University of North Carolina (UNC), Chapel Hill. However, last Friday, the Supreme Court moved to separate the cases, clearing the way for Jackson to weigh in on the case involving UNC.

Unlike Justices Gorsuch, Kagan, and Chief Justice John Roberts, who graduated Harvard Law but have held no recent roles with the university, Jackson’s role on the Board of Overseers concluded in late May, the Washington Examiner reports.

The primary difference between the Harvard and UNC cases, explained senior defense attorney Rita Mkrtchyan, “is that UNC is a state school and is therefore subject to constitutional constraints that Harvard is not.”

Because Harvard receives federal funding, it must comply with federal civil rights laws that ban racial discrimination, despite being a private university.

“By accepting both cases, the court can consider whether the public versus private distinction is a consequential factor for affirmative action,” said Mkrtchyan, who also serves as the director of equity alliance at Oak View Law Group.

The order decoupling the two cases means that both cases will be afforded one hour for arguments, rather than both cases having to share the allotted time for joint oral arguments.

As American Wire reported in June, Students for Fair Admissions (SFFA) v. Harvard centers around claims that Harvard’s admissions policy racially discriminated against Asian Americans during its 2022-2023 term. By extension, the case calls into question the constitutionality of such affirmative action programs as they relate to the Fourteenth Amendment, which guarantees equal protection under the law regardless of race.

Daniel Suhr is the managing attorney at the Liberty Justice Center and counsel of record in an amicus brief supporting SFFA. According to him, now is the time to strike down such racist policies.

“In no other circumstance besides higher education does the Supreme Court tolerate this sort of overt racial discrimination,” he said. “This case is the right time to restore the promise of the Fourteenth Amendment and end racial discrimination.”

The counsel of record in Pacific Legal Foundation’s amicus brief, Wen Fa, concurred.

“The Constitution demands that the government treat individuals as individuals and not as members of arbitrary racial groups,” Fa said. “Government increases opportunity by tearing down government-imposed barriers to achievement, not by doling out preferences on the basis of race.”

While this isn’t the first time the Supreme Court has addressed affirmative action, the new, conservative make-up of the court means there is a far greater chance that the employment of affirmative action policies by educational institutions could soon be rendered a thing of the past, regardless of Jackson’s vote. In 2016, Justices Thomas, Alito, and Roberts all voted against affirmative action in Fisher v. University of Texas, and that was before Justices Brett Kavanaugh and Amy Coney Barrett joined the court.

Dates for the two cases have yet to be set, but both are expected to go before the SCOTUS justices in November or December of this year.

 

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