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Attorney tells SCOTUS why white men get 'thumb' on scale but not those kicked in teeth for centuries [1]

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Date: 2022-11-01

Prelogar said:

A blanket ban on race-conscious admissions would cause racial diversity to plummet at many of our nation’s leading educational institutions. Race-neutral alternatives right now can’t make up the difference so all students at those schools would be denied the benefits of learning in a diverse educational environment. And because college is the training ground for America’s future leaders, the negative consequences would have reverberations throughout just about every important institution in America. For the United States military, as I’ve explained, having a diverse officer corps is a critical national security imperative. For corporate America, diversity is essential to business solutions. For the medical community and scientific researchers, diversity is an essential element of innovation and delivering better health outcomes.

Jackson, who recused herself having graduated magna cum laude from Harvard and sitting on the university’s board of overseers, gave a hypothetical to illustrate what Prelogar explained.

The justice said:

And so what I'm worried about is that the rule that you're advocating, that in the context of a holistic review process, a university can take into account and value all of the other background and personal characteristics of other applicants, but they can't value race. What I’m worried about is that that seems to me to have the potential of causing more of an equal protection problem than it's actually solving. And the reason why I get to that possible conclusion is thinking about two applicants who would like to have their family backgrounds credited in this applications process. And I'm hoping to get your reaction to this hypothetical.

The first applicant says, ‘I'm from North Carolina. My family has been in this area for generations, since before the Civil War, and I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that, and given my family background, it's important to me that I get to attend this university. I want to honor my family's legacy by going to this school.’ The second applicant says, ‘I'm from North Carolina. My family’s been in this area for generations, since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African American, I now have that opportunity, and given my family background, it's important to me to attend this university. I want to honor my family legacy by going to this school.’

Now, as I understand your no race-conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count. The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn't be able to because his story is in many ways bound up with his race and with the race of his ancestors. So I want to know based on how your rule would likely play out in scenarios like that why excluding consideration of race in a situation in which the person is not saying that his race is something that has impacted him in a negative way. He just wants to have it honored just like the other person has their personal background family story honored. Why is telling him no not an equal protection violation?

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[1] Url: https://www.dailykos.com/stories/2022/11/1/2132789/-Attorney-tells-SCOTUS-why-white-men-get-thumb-on-scale-but-not-those-kicked-in-teeth-for-centuries

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