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President Joe Biden made history on Friday when he nominated federal appeals court judge Ketanji Brown Jackson to be the first black woman to serve on the United States Supreme Court. If confirmed, however, she will likely be pressured to take time off from one of the most important cases involving race and education in recent years.
In 2016, she recused herself from a sexual misconduct case against the US Department of Education because she served on the Board of Overseers at Harvard University, where she previously graduated magna cum laude and served as editor of the Harvard Law Review. Ahead of her confirmation hearings for a federal judgeship, she explained in a survey that she was “serving on the board of a university that was evaluating its own potential response” to the sexual assault guidelines.
This rationale will likely be revisited if she sits in court next term when he hears an upcoming case in which the university is a defendant, one of two tough admissions policies based on race. The plaintiffs allege that affirmative action policies at both Harvard and the University of North Carolina discriminate against Asian Americans by giving preference to black and Hispanic students.
Charles Geyh, a judicial ethics expert at Indiana University, said Jackson’s first responsibility would be to consider whether she could be impartial. But the degree of board involvement in creating and implementing the policy is also factored into the decision.
“The more involved she was, the more a reasonable person would look at this and say, ‘I don’t know if she can weigh this thing impartially,'” he said. “I wouldn’t be shocked to find that some senators will try to take advantage of that.”
Students for Fair Admissions vs. Harvard is one of many high-profile education cases the court will hear in the years to come. Other potential issues that should escalate from lower federal courts relate to religious school choice, the rights of transgender students and the public status of charter schools.
Jackson, who attended a Miami-Dade high school, is the daughter of public school educators, whom she thanked during a speech at the White House on Friday.
“My dad made the fateful decision to quit his job as a history teacher at a public high school and go to law school,” she said. “Some of my earliest memories are of him sitting at the kitchen table reading his law books. I watched him study. He became my first professional model.” Her father served as a Miami-Dade County Public Schools District Attorney and her mother served as principal of one of the district’s magnet schools for 14 years.
Despite his strong public school connections, Jackson served on private school boards in the DC area — the Georgetown Day School and a Christian school in Maryland that has since closed.
Montrose Christian School opposed abortion, another issue Jackson may face in court. The school’s mission statement also stated that marriage should be limited to those between a man and a woman. Asked by Senator Josh Hawley, a conservative Republican from Missouri during confirmation During last year’s hearings into her appeals court appointment, she responded that she didn’t “necessarily agree with every statement…that those counsel might have in their paperwork.”
None of those potential conflicts arose on Friday, however, when Biden formally announced his nomination.
“His opinions are always carefully reasoned, tied to precedent and demonstrate respect for how the law affects ordinary people,” he said. “That’s not to say she puts her thumb on the scales of justice one way or another, but she understands the wider impact of the decisions.”
If confirmed, Jackson will not change the ideological makeup of the court, where the conservatives have enjoyed a supermajority since 2020. That means on a major educational issue like school choice — where the liberals sway generally oppose public funding for religious schools — the addition of Jackson is unlikely to affect the outcome.
But as the first black woman on the field, Jackson would likely be more sensitive to issues of race and gender, as evidenced by school dress codes or restrictions on black hairstyles like braidsand she might see “discrimination that perhaps another judge might not,” said Preston Green, a professor of education at the University of Connecticut.
Jackson would join the court at a time when conservative justices have signaled they are open to removing abortion rights and have already moved in the direction of greater religious freedom.
“This court is really reversing a lot of decisions that people thought were out of order,” Green said.
“So long awaited”
Prior to his service at the DC Court of Appeals, Jackson served as a trial judge of the Washington Federal Court for 8 years. Biden called Jackson’s experience as a trial judge an “essential qualification,” and civil rights organizations celebrated the appointment.
In 2020, she blocked the Trump administration to allow child welfare agencies receiving federal grants to turn away LGBTQ youth and families. And in 2018, Jackson ruled that the Trump administration failed to follow proper procedure when seeking to end funding for teen pregnancy prevention.
” I am delighted. It’s groundbreaking, and it’s so late to have a black woman on the Supreme Court,” said Sasha Buchert, senior counsel at Lambda Legal, which focuses on LGBTQ student and adult rights. “She has a stellar civil rights record.”
Buchert is among legal experts who expect a case involving the rights of transgender students to reach court at some point. The 11th Circuit Court of Appeals, which heard oral argument a case in Florida last week, could come up against the 4th Circuit, which reigned in Grimm v. Gloucester County School Board that a transgender boy could use the bathroom that matched his gender identity. The Supreme Court denied an appeal of that case, but conservative justices Clarence Thomas and Samuel Alito said they would have heard it.
Joshua Dunn, a professor of political science at the University of Colorado, Colorado Springs, said the court may also consider whether transgender girls should be able to play women’s sports.
“I don’t see any way they can dodge that one,” Dunn said. “There will be split circuit decisions sooner rather than later.”
Hecox vs. Little — a challenge to Idaho’s ban on transgender girls in women’s sports — is currently moving into the 9th Circuit. Long considered one of the most liberal courts of appeal, the Circuit Court changed recently because of former President Donald Trump’s appointments. The Alliance Defending Freedom, an Arizona-based conservative law firm, is also expected to appeal dismissal of a case challenging a Connecticut policy that allows transgender girls to participate in girls’ sports in high school.
Dunn said it was difficult to predict how judges would rule in such a case, adding that if Jackson were confirmed, all three liberal members of the court would be women.
Conservative members, he said, might be “suspicious” to decide that bans like Idaho’s should stand, but added that he could see “some members of the liberal wing of the court s ‘worry’ about transgender girls in sport.
The fact that Judge Neil Gorsuch, a conservative, wrote the 2020 opinion in Bostock v. County of Clayton could be a factor in any future case involving LGBTQ rights. In this case, the court decided that federal law prohibits employment discrimination against LGBTQ workers. But Buchert said the decision also left the door open for restrictions outside the workplace.
A “minimalist course”
Before the end of the current mandate, the court will give an opinion in Carson v. Makin, which challenges a Maine law prohibiting certain religious schools from receiving public funds for tuition assistance. How the court rules in this case could determine whether Jackson might face a similar school choice issue if confirmed.
How far will the super-conservative Supreme Court majority go to push for religious freedom in public schools? Maine Choice Case Provides New Test
Experts expect the court to rule in favor of the plaintiffs, who claim the state discriminates against religious families. “My feeling is that [Chief Justice John] Roberts’ ability to keep conservatives on the minimalist path he established is over,” Dunn said, but added that the court could also leave open the possibility of similar cases in the future.
A decision in a Case of the 4th Circuitwhich focuses on whether a student can sue a charter school under the federal Equal Protection Clause, is due out this spring.
“Government speech” or private prayer?
Jackson will not be on the field to hear a church-state separation case this quarter in which a football coach claims he should be allowed to pray publicly after games. But when she served as clerk for Justice Stephen Breyer, the Supreme Court justice she is set to replace, the court ruled that student-led prayer at football games violates the first amendment.
In choosing Jackson, Biden passed on California Supreme Court Justice Leondra Kruger and South Carolina Federal District Court Judge J. Michelle Childs, who not only attended K-12 public schools as Jackson, but also earned a law degree from the University of South Carolina.
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