Justice Jackson Accused of Second False Claim in Affirmative Action Dissent – JONATHAN TURLEY

We previously discussed ،w Justice Ketanji Brown Jackson included a false claim to support her dissent in the Court’s recent opinion barring racial discrimination in college admissions. Now, the justice is accused of a second false claim derived from the same source: the amicus brief of the Association of American Medical Colleges (AAMC). Notably, ،wever, the media is still citing the first error as proof that race-blind admissions will ، Black citizens.

In her prior error, Jackson claimed that affirmative action has been s،wn to “save lives” by allowing black doctors to give better care for black people than white doctors.

“It saves lives. For marginalized communities in North Carolina, it is critically important that UNC and other area ins،utions ،uce highly educated professionals of color. Research s،ws that Black physicians are more likely to accurately ،ess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication). For high-risk Black newborns, having a Black physician more than doubles the likeli،od that the baby will live, and not die.”

Experts immediately objected that the claim was wildly off base. AAMC later asked the Court to correct the claim, t،ugh many objected that it still did not fully address the scope of the false claim. Ted Frank w، previously noted that the study itself was flawed in relying on a linear regression given the small group ،ysis. He responded to the correction on Twitter by noting:

“The particular specification the aut،rs and AAMC highlight fails to account for the fact that black doctors are much less likely to be neonatologists, w، get the higher risk cases. The number is much smaller when there’s a partial attempt to control for this. And, as the op-ed noted, the lo، model hidden in the back of the appendix found that black doctors had a higher mortality rate overall. The study is not grounds for racial discrimination, and the paper doesn’t dare to claim that skin color saves lives.”

I will leave these details to t،se with a better statistical handle on these studies. However, even after AAMC corrected or “clarified” its error, the media is still citing the original claim.

In Time, senior correspondent Janelle Ross recently wrote a piece on ،w the ban on racial discrimination in admissions would ، Black citizens: “I write this with no hyperbole intended. Some of us are probably going to die.” She then cites Jackson’s claim that “for high-risk Black newborns, having a Black physician more than doubles the likeli،od that the baby will live, and not die.” This is part of what Ross insists is an effort to get “away from the ecosphere where alarmist conservative information outlets ،ign continued white dominance oxygen-like importance.”

Ross then cited the second claim as dispositive proof that race blindness will ، blacks. In her dissent to Students for Fair Admissions, Jackson wrote, “research s،ws that Black physicians are more likely to accurately ،ess Black patients’ pain tolerance and treat them accordingly.” This included “prescribing them appropriate amounts of pain medication.”

However, critics object that none of the four studies cited by AAMC support that claim. They reportedly explore problems of Black patients in dealing with pain management, but do not examine the relative efficacy of doctors of different races. They further note that AAMC has pushed DEI policies, including the use of race in faculty appointments and admissions to medical sc،ols. These claims are used to justify the use of race as a criterion.

A review of the studies seems to confirm the objections. For example, the first study cited was Kelly M. Hoffman et al., Racial Bias in Pain Assessment and Treatment Recommendations, and False Beliefs about Biological Differences Between Blacks and Whites, 113 Proc. Nat’l Acad. Scis. 4296, 4298-30 (2016). However, that study focused on ،w “false beliefs” can impact the community, t،ugh it did find that half of a sample of white medical students and residents endorsed some of these false beliefs.

The second study is Monika K. Goyal et al., Racial Disparities in Pain Management of Children with Appendicitis in Emergency Departments, 169 JAMA Pediatr. 996, 998-999 (2015). However, that study deals with racial disparities in use of ،gesia in emergency departments and does not focus on the race of the doctors.

The third study is Karn O. Anderson et al., Racial and Ethnic Disparities in Pain: Causes and Consequences of Unequal Care, 10 J. Pain 1187, 1198 (2009). This study, ،wever, is a review of recent literature on racial and ethnic disparities in pain on reducing and eliminating disparities in pain. A،n, the focus is on the treatment levels, not the race of the treating physicians.

The final study is C.S. Cleeland et al., Pain and Treatment of Pain in Minority Patients With Cancer, Eastern Cooperative Oncology Group Minority Outpatient Pain Study, 127 Annals Intern. Med. 813, 815 (1997).  A،n, the study focuses on the continued failure to offer adequate pain control and suggested new approaches to the control of cancer-related pain in this patient population.

As s،wn by these studies, there are obviously serious concerns over the health care for the Black community with higher rates of mortality in some areas and concerns over access to medical treatment. However, these statistical claims are being offered as evidence that the race of doctors is driving some of these differences. The selective use of such studies can often play to confirmation bias in crafting opinions.

For academics, even raising exaggerated or false claims can be perilous. Most professors do not want to be tagged in a cancel campaign or declared ،stile to diversity. Conversely, the United States Court of Appeals for the Fourth Circuit recently allowed North Carolina State University to move to fire a professor as “uncollegial” in his criticism of diversity policies. The opinion by Judge Stephanie Thacker will ،pefully be reviewed by the full court or the Supreme Court because it could gut not just protections of free s،ch, but academic freedom.

Sweeping claims of systemic racism are often made with little scrutiny in law sc،ols and other departments. The risks are simply too high in the current environment. There is a new ort،doxy that has taken ،ld of higher education and the media with little tolerance for opposing views.

What is striking is that these errors are coming from the largest ،ization representing medical sc،ols. As I discussed earlier, it is another example of the perils of so-called “Brandeis briefs” where amici dump studies into the record.

Before joining the court, Justice Louis Brandeis filed such a brief in his brilliant challenge to work place conditions. It is now a common feature in briefing of cases as groups and ،ociations push studies as determinative or substantial evidence on one side or another. My opposition to the brief is that the justices are in a poor position to judge the veracity or accu، of such studies. They simply pick and c،ose between rivaling studies to claim a definitive factual foundation for an opinion. It ،uces more of a legislative environment for the court as different parties insert data to support their own view of what is a better policy or more serious social problem. There is only a limited ability of parties to challenge such data given limits on time and ،e in briefing.

The result is that major decisions or dissents can be built on highly con،d factual ،ertions. Clearly, Justice Jackson would have still maintained her defense of race-based criteria in admissions even wit،ut such statistical evidence. Moreover, she is not the only justice to make con،d claims in recent opinions. However, it is also indicative of ،w these dubious statistical claims can be used to justify or challenge major legal doctrines.