Ketanji Brown Jackson meets with anti-affirmative action lawyers during Supreme Court arguments

Justice Ketanji Brown Jackson Monday he met with a lawyer for a student group that seeks to end affirmative action in university admissions, as the justice challenged whether the group “waited” to ask.

“Why is it that race does something different to the ability of your members to compete in this environment,” compared to a number of other factors involved in admission, Jackson asked the attorney Students for Admission Fair (SFFA), Patrick Strawbridge.

“It’s in the context of all the other factors … the admissions office is looking at,” Jackson added. “You didn’t show or demonstrate a situation in which all they see is race. They look at the whole person.”

Jackson also said that SFFA appeared to be seeking a “special position” in the case. Standing is a legal term for the “damage” suffered by a person that allows the person to sue in court to have it remedied.

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Strawbridge admitted that race is almost never the only factor in a college admissions decision. However, he argued that fact is a factor that tips the scale unfairly for at least some candidates.

“It doesn’t make sense in a zero-sum game. If we are let’s consider race, and we argue that a racial classification — which is greatly disfavored in the law because of its necessarily invidious nature — is going to be used, clearly a job has to be done,” Strawbridge told Jackson.

Strawbridge argued that schools that use affirmative action are “making distinctions on who admits at least in part on the race of the candidate. Some races get a benefit. Some races don’t have a benefit.”

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Jackson was one of the most vocal justices during the early stages of Monday’s argument, going back and forth with Strawbridge on several occasions.

Later, she and Strawbridge clashed over whether UNC should put race before application reviewers.

“I did not see that they were fired for a particular purpose, or that there was a purpose. I think, in fact, that as the reviewers went through the process, they did not even know how many other students of color had been. admitted Jackson said. “They don’t operate the system, I thought, to achieve some sort of racial goal.”

Strawbridge said the university only implemented its current policy as Jackson described until SFFA filed its lawsuit.

Jackson also noted that schools often consider students’ non-racial characteristics, including whether they are veterans and whether they are parents, in admissions.

“What you are proposing is that in the context of a holistic review process, universities can take into account and value all other backgrounds and personal characteristics of other applicants, but they cannot value race,” Jackson added. “What worries me is that it seems to me to have the potential to cause more of an equal protection problem than it actually solves.”

Jackson also presented a hypothetical with two candidates, both of whom are from North Carolina — one who is a descendant of slaves and another with generations of relatives who attended UNC. The descendant of slaves, Jackson said, could have his background excluded because that background is “tied up” in his race as a Black man.

“In almost exactly the same set of circumstances, a student – an applicant – who is African-American and who wanted to have the fact that he has been in North Carolina for generations through his family, and they never had the opportunity to go at this school, honored and respected, and it is related to his race,” continued Jackson. “You say, I think, that it is not allowed to say that, and that the university is not allowed to take this into account.”

Strawbridge responded that UNC could consider students who would be the first generation in their family to go to college, and if they are economically disadvantaged. But, Strawbridge said, race should not be relevant in the 21st century.

“It is a basis for making decisions on the admission of students who were born in 2003, and I don’t think it is necessarily,” he said.

The Supreme Court heard two cases in which SFFA is suing a large university for its policy of including race as a factor in admissions decisions. The first case on Monday was against the University of North Carolina. The court heard a similar case against Harvard immediately following the UNC case.

SFFA says that “it is a coalition of potential applicants and applicants to institutions of higher education who have been denied admission to institutions of higher education, their parents, and other individuals who support the purpose and mission of l “organization to eliminate racial discrimination in higher education admissions. has members throughout the country.”

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The group also said in its initial filing against UNC that its membership includes at least one white student who was denied admission to the university. Harvard’s case will be discussed later on Monday, focusing more on how Harvard’s policies allegedly hurt Asian American applicants.

Those who support the use of affirmative action in college admissions cite several past Supreme Court precedents that say it is permissible.

Supporters of affirmative action also say it is important to ensure diversity in universities, which serve as pipelines to key leadership positions in society.