Ketanji Brown Jackson’s Harvard Race-Discrimination Problem

J udge Ketanji Brown Jackson has a race-discrimination problem, and it just got a lot bigger. That problem could complicate her candidacy for the Supreme Court.

The D.C. Circuit judge is near the top of the very short list to replace Stephen Breyer; indeed, she is widely seen as the front-runner. Just as Brett Kavanaugh was once a law clerk for Anthony Kennedy and replaced him on the Supreme Court, Jackson once clerked for Breyer. A federal district-court judge since 2013, she was elevated last year to the D.C. Circuit, a court long treated by both parties as a farm team for Supreme Court picks. Former D.C. Circuit judges nominated to the Court include Kavanaugh, Merrick Garland, John Roberts, Ruth Bader Ginsburg, Clarence Thomas, Douglas Ginsburg, Robert Bork, and Antonin Scalia. She just published her first D.C. Circuit opinion.

The firestorm over Joe Biden’s unpopular pledge to exclude everyone but African-American women from consideration for his first Supreme Court nomination has put Jackson and the other short-listers under a microscope. There are a number of concerns with her judicial record, from her record of reversals by the D.C. Circuit as a district judge to her turgid writing style.

But the timing of the nomination presents a more serious and polarizing issue: Harvard University’s policy of race discrimination against Asian students, which is currently being challenged in a lawsuit pending before the Supreme Court, in tandem with a parallel case involving the University of North Carolina. The parties to the case have just submitted a briefing schedule that would put the case over onto the fall 2022 calendar — after Breyer has left the Court. If Jackson were nominated and confirmed by October, she could potentially be in a position to hear the case.

That presents an immediate problem: Jackson, an alumna of both Harvard College and Harvard Law School, is a member of Harvard University’s Board of Overseers and is thus directly involved in overseeing the governance of one of the parties to the case. Unlike the various strained recusal arguments regularly pushed against the Court’s conservatives, this is a clear conflict of interest in the Harvard case.

Moreover, this is not simply an issue of collateral significance; the question goes to the heart of the university’s admissions, which the school has decided to defend all the way to the Supreme Court. The president of the university has sent out statements to the alumni about the case. The two cases are being heard in tandem because they involve almost identical issues (with the difference that UNC is a state school and thus subject to the 14th Amendment, which does not apply to Harvard as a private institution). Harvard and UNC will undoubtedly be presenting what amounts to a joint defense in how they brief and argue the case. As a result, there is a powerful argument that Jackson would have to recuse from the UNC case as well. As Amy Howe at SCOTUSBlog notes, Jackson herself has made recusal decisions before that would support this:

In 2016, Jackson recused herself from a case challenging the U.S. Department of Education’s sexual-assault guidelines for colleges and universities; in her Senate questionnaire for her D.C. Circuit confirmation hearing, she explained that at the time she was “serving on the board of a university that was evaluating its own potential response to those guidelines” and therefore her impartiality might be questioned. Jackson’s service on Harvard’s board raises the prospect that, if nominated and confirmed, she would also recuse herself from the challenge to Harvard’s race-conscious admissions policy . . .

The Harvard Crimson talked to multiple academics who thought recusal would be necessary even if she steps down from the board, which she is scheduled to leave later this year:

Indiana University law professor Charles G. Geyh, an expert on judicial conduct and ethics, said a recusal should hinge on whether she was involved in implementing race-conscious admissions policies during her time in University governance. “In her capacity as a member of the Harvard Board of Overseers, if she was responsible for creating, implementing, or enforcing the policy that she is now being asked to review, I would probably argue that she should step aside in that situation,” Geyh said.

Harvard Law School professor Noah R. Feldman ’92 said “there would be a strong argument that she would not need to recuse” if confirmed to the bench. “On the Board of Overseers, neither she nor the other overseers would have had definitive say over the admissions process at the University,” he said. But recusals often hinge on public perception, experts say. “There’s the question of perception — public perception,” Feldman said. “For that reason, one could imagine her thinking seriously about whether she might want to recuse, so as to avoid any such perception, however mistaken that perception might be.”

Paul Bender ’54, an Arizona State University law professor, said Jackson’s time in Harvard governance could be reason enough for her to recuse herself from the case if she is nominated to the bench. “I would imagine this Board of Overseers has some overseeing responsibility of the College and that would be enough for me to think that she should recuse herself,” he said. . . . Even if Jackson played no role in overseeing Harvard’s admissions policies, “it is just the kind of thing that looks terrible,” Bender said. . . .

Sanford V. Levinson, a law professor at the University of Texas at Austin, said it would be “very dicey” if Jackson didn’t recuse herself. “Judge Jackson is on the board even as we speak, and so it would seem to me that she would have some explaining to do if she didn’t recuse herself,” he said.

Recusal, however, is only the tip of the iceberg. The Senate should also probe Jackson on her role in and approval of Harvard’s policy of race discrimination, which has led to vastly disparate effects on the admission rates for Asian students compared with African-American students with comparable academic records. There is a long record of nominees being quizzed about their associations with discrimination, in many cases far more attenuated than this. At Samuel Alito’s confirmation hearings in 2005, a major theme of the questioning by Democratic senators was focused upon Alito’s association with an alumni group (Concerned Alumni of Princeton) on the theory that it had some association with exclusionary policies at Princeton eating clubs; Democrats also focused on an article written by someone else for one of its publications. Joe Biden himself donned a Princeton hat during the hearings in the midst of one of his interminable speeches masquerading as a question about Princeton’s admissions policies, while also grousing about Alito not recusing himself from cases involving Vanguard, the mutual-fund colossus that managed the money of Alito and millions of other Americans:

Jackson’s role as an overseer undoubtedly implicates her much more directly in a core policy of the university, even if the board does not set that policy itself. As the Crimson explains:

The 31-member board provides input about the direction of the school and probes the quality of the University’s programs and initiatives. . . . The Board of Overseers, one of two governing boards at Harvard, does not provide direct input on the school’s admissions policies. There was no mention of the Board in a 130-page opinion issued by a federal judge in 2019 that detailed Harvard College’s admissions process. The 13-member Harvard Corporation, the University’s highest governing body, plays a larger role in overseeing the school’s operations.

As Harvard’s website notes:

Formally established in 1642, the Board plays an integral role in the governance of the University. As a central part of its work, the Board directs the visitation process, the primary means for periodic external assessment of Harvard’s schools and departments. Through its array of standing committees, and the roughly fifty visiting committees that report to them, the Board probes the quality of Harvard’s programs and assures that the University remains true to its charter as a place of learning. More generally, drawing on its members’ diverse experience and expertise, the Board provides counsel to the University’s leadership on priorities, plans, and strategic initiatives.

The Board typically gathers five times a year for plenary and committee meetings, in addition to the time Overseers devote to other Harvard service. The plenary sessions commonly focus on a topic prominent on the University’s agenda — in areas such as innovations in teaching and learning, research initiatives throughout the arts and sciences and the professions, and efforts to enhance connections across the University’s schools and to amplify Harvard programs’ beneficial impact on the wider world. Plenary sessions typically include reports from standing committees and a discussion with the President of the University about key issues and challenges.

It goes on to detail the “Expectations of Service” for the overseers:

Overseers occupy a visible role in the Harvard community and beyond. As a prominent citizen of the University, each Overseer fulfills that role in many ways, including the following:

• Helping the president and other senior officers of the University to fulfill their executive responsibility for the leadership and management of the institution.

• Staying informed about Harvard and about broader trends and issues affecting higher education.

• Advancing the University’s efforts to secure the human, academic, physical, and financial resources needed to achieve its mission

These criteria make it clear that Jackson cannot plead ignorance: She was expected to be informed about major issues involving the college, and this is by far the most prominent controversy involving the college and its educational mission during the time of her service as an overseer. This places Jackson much closer to Harvard’s core institutional policies than, say, Elena Kagan, who was dean of Harvard Law School from 2003 to 2009 but was not involved in oversight of the undergraduate school, which is the target of the lawsuit. Of course, Jackson may try to distance herself from the university’s policies, as she did when Josh Hawley questioned her about the policies of a Christian school on whose board she served a decade ago:

At her confirmation hearing in April 2021, Jackson faced questions about her service from 2010 to 2011 on the board of Montrose Christian School, a Maryland private school that has since closed. Sen. Josh Hawley, R-Mo., noted that the school’s statement of faith indicated that “we should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death” and that marriage should be limited to a man and a woman. Hawley noted that Barrett had been “attacked” for serving on the board of a Christian school with similar positions, and he asked Jackson whether, based on her service at Montrose Christian, she believed in “the principle, and the constitutional right, of religious liberty.”

“I do believe in religious liberty,” Jackson told Hawley. It is, she said, a “foundational tenet of our entire government.” But Jackson distanced herself from the Montrose Christian statement of faith, telling Hawley that she had “served on many boards” and did not “necessarily agree with all of the statements . . . that those boards might have in their materials.” And in this case, she added, she “was not aware of” the statement of beliefs.

Still, should she be nominated to replace Breyer, the Senate will be wholly justified in grilling Jackson to find out whether she supported Harvard’s policy of race discrimination in her role on its Board of Overseers. This is not a hypothetical question about a future case, which she could reasonably decline to answer; it is a question about her own record, and it goes to the core of whether she is committed to equal justice under law for people of every race and ethnicity.