In this blog text the focus is on Justice Jackson’s dissenting opinion. As opposed to the other Justices in SFFA v. Harvard, Justice Jackson did not participate in the case SFFA v. Harvard due to her former position as a board member in one of the university’s governing bodies, the Body of Oversees. She did however participate in the consolidated case SFFA v. UNC. The case was very similar to Harvard: SFFA sued the University of Northern Carolina for their admissions process because they also used race as a factor in the process.
Justice Jackson dissents from the main opinion of the court and she joins Justice Sotomayor’s opinion without qualification. They agree about the legal matter that is the fact that the Constitution or Title VI of the Civil Rights act doesn’t contain anything that would prohibit the institutions from taking race into account to ensure the racial diversity of admits in higher education. In addition to this Justice Jackson wants to explain in her opinion the societal perspective to why taking race into consideration in this context is important.
The main argument that Justice Jackson leans on is that the court has not taken history and reality into consideration when making this decision. The court seem to forget how the black people have been treated for hundreds of years. In the opinion Justice Jackson describes the discrimination they have been encountering during the years, from slavery to Jim Crow -laws to modern-day racism and all between those. As an example, during 1930-1960 only 1 % of the mortgages in the USA was granted to African Americans because of government policy and the banks’ decision not to permit loans to “high risk areas” i.e. the black neighborhoods. Those who were lucky to get a loan had to pay unreasonably high interests. Black people evidently live in worse conditions when looking at differences financially and health wise. There’s a gap between races that still is existing.
Another big issue Justice Jackson sees in the majority opinion is that they haven’t explained the application process thoroughly. They portray it as a race-based process when it is quite the opposite. When applying to UNC the applicant is not obliged to submit demographical information like race and gender, but if the applicant discloses their race, it can be seen as any other evaluating criteria such as extracurricular activity or special talents. It is also a factor to assess the merits and inheritance equally because this is how the admissions board can evaluate the advantages or disadvantages the applicant has born with. The majority seem to have misunderstood this or somehow just swept it under a rug. So as, Justice Jackson argues the submittal of race in an admission can be only seen as a plus to the admission letter because diversity is a great interest of the university.
The way Justice Jackson sees the court’s decision is that this colorblindness will even further widen the gap, quite opposite of what the majority thinks. She says that this “will delay the day that every American has an equal opportunity to thrive, regardless of race.” If the gap widens more and the diversity reduces, the students will not have as good starting point to their post-graduate life because as Jackson argues diversity “improves cognitive abilities and critical thinking skills” and “reduces prejudice”. Seems like quite important skills a post-graduate should possess.
What sums up Justice Jackson’s opinion well is that it is not the white applicant’s fault that they are going to be a seventh-generation graduate from the UNC. They should get their legacy admission, but neither is it the black person’s fault that they are first-generation and maybe fought through a really though life to get to where they are today. The point is that if the universities now get colorblind, they forget that the applicants’ race has in many cases played a role in where the applicant is now in their life. According to Justice Jacksons dissenting opinion, to become colorblind does not solve the issue of race-based disadvantage.
Team Harvard, Case Argumentation Analysis