The nomination of Judge Ketanji Brown Jackson to the Supreme Court has raised questions about her ability to objectively rule on an affirmative action case coming before the Court during the 2022-2021 term involving Harvard University where she serves as a member of the board of overseers:
After Justice Stephen Breyer retires from the bench later this year, the Supreme Court is poised to hear arguments this fall in one of the most significant cases before the court regarding race-based admissions policies at Harvard and the University of North Carolina at Chapel Hill. If the Senate does confirm Jackson to succeed Breyer, her involvement on Harvard's board of overseers would raise questions regarding the Judicial Code of Conduct, which instructs judges to "avoid even the appearance of conflicts or bias," Turley wrote in an op-ed for the Hill on Tuesday.
"Since the board plays 'an integral role in the governance of the university,' the questions involved in the case before the court would appear to fall within the board’s broad discretion," Turley said, adding that "Jackson not only has an institutional interest as a Harvard board member but likely has personal knowledge of admissions standards or policies from her service on this board."
A recent opinion piece from The Heritage Foundation's Hans von Spakovsky explored the challenges to admissions policies at Harvard and the University of North Carolina:
It was clear from the evidence that both universities blatantly discriminate in their admissions based on the students’ race. Members of certain minority groups — such as Hispanics and African Americans — are accepted with lower qualifications and lower academic credentials than other students, particularly Asian American students, who are being penalized for their high overall achievements in the academic arena.
In fact, Harvard is using many of the same techniques it used 100 years ago to discriminate against Jewish students. Harvard routinely gives Asian American students the lowest personal “character” and “fitness” ratings of any racial group. Such odious and offensive stereotyping is still considered acceptable in the admissions offices of many 21st-century American universities.
Unfortunately, racist admissions policies are not just limited to higher education. Nationally known Thomas Jefferson High School in northern Virginia recently came under scrutiny for a dramatic change in their admissions standards:
After TJ’s new admission process went into effect in 2021, the enrollment data revealed that TJ admitted 56 fewer Asian American students than it did in the prior school year. Asian Americans make up 54 percent of TJ’s 2025 class, significantly dropping from 73 percent of class 2024.
When Asian, black, and other concerned parents voiced concern about the fairness of TJ’s new admission process, the school board used racially charged terms to denounce them, such as telling Asian Americans to check their “privilege” and calling any advocacy for a merit-based admission “segregation bullsh*t.” This name-calling revealed the school board’s bigotry and ignorance of the ethnic diversity and wide income gaps within the Asian American community. Refusing to give up, Asian American parents led a coalition of families and alumni from diverse racial backgrounds to challenge TJ’s race-based admission process in court. The Pacific Legal Foundation provided legal representation to the coalition.
Last week, a federal court struck down the high school's racially charged admissions policy:
On Feb. 25, federal district court Judge Claude Hilton granted summary judgment to the Coalition For TJ, a coalition made up of Asian American parents with children who had applied for admission to Thomas Jefferson High School or were planning to do so. They were represented by the Pacific Legal Foundation.
The parents challenged the change in the school’s admissions policy implemented by the elected members of the Fairfax County School Board in 2020. Hilton concluded that change was made with a clear racist purpose:
Board members and high-level FCSB (Fairfax County School Board) actors did not disguise their desire for TJ (Thomas Jefferson High School) to represent the racial demographics of Fairfax County or Northern Virginia as a whole.
Despite their efforts at ensuring “holistic” admissions, Hilton found the policy to be “racial balancing for its own sake,” and therefore, “patently unconstitutional.”
Cases like this show that the Harvard and UNC cases are unlikely to be the last affirmative action cases that come before the Supreme Court. This is especially important to consider as the nomination of Ketanji Brown Jackson to the Supreme Court is examined by Republicans. At a minimum, it seems Brown Jackson should pledge to recuse herself from the Harvard case.