Attorney disputes Justice Jackson's claim that affirmative action "saves lives"

 July 7, 2023

The Supreme Court made headlines last week after it ruled that colleges may not consider race when deciding which students to admit.

Three of the Court's Democratic appointees dissented, including Justice Ketanji Brown Jackson. However, one critic recently suggested that her arguments were nothing short of crazy. 

Jackson says that affirmative action "saves lives" in "marginalized communities"

As Fox News noted, Jackson at one point contended that university affirmative action programs are necessary to stop black children from dying.

"It saves lives," Jackson wrote in her dissent. "For marginalized communities in North Carolina, it is critically important that UNC [University of North Carolina] and other area institutions produce highly educated professionals of color."

"Research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication)," she continued.

"For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die," the justice insisted.

Lawyer calls Jackson's claim "wildly implausible"

Those claims were met with extreme skepticism from attorney Ted Frank, who responded in an op-ed piece published by the Wall Street Journal on Wednesday.

"A moment’s thought should be enough to realize that this claim is wildly implausible. Imagine if 40% of black newborns died—thousands of dead infants every week," he wrote.

"But even so, that’s a 60% survival rate, which is mathematically impossible to double. And the actual survival rate is over 99%," Frank stressed before asking, "How could Justice Jackson make such an innumerate mistake?"

To support her assertion Jackson pointed to a 2020 study by George Mason University School of Business professor Brad Greenwood.

"The study makes no such claims"

It was included in an amicus brief submitted by the Association of American Medical Colleges (AAMC) which made "the same claim in almost identical language."

Yet Frank retorted that "[t]he study makes no such claims," declaring, "The AAMC brief either misunderstood the paper or invented the statistic."

"Rather, he explained that the study "examines mortality rates in Florida newborns between 1992 and 2015 and shows a 0.13% to 0.2% improvement in survival rates for black newborns with black pediatricians (though no statistically significant improvement for black obstetricians)," he continued.

"So we have a Supreme Court justice parroting a mathematically absurd claim coming from an interested party’s mischaracterization of a flawed study. Her opinion then urges 'all of us' to 'do what evidence and experts tell us is required to level the playing field and march forward together.' Instead we should watch where we’re going," Frank concluded.

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