“Supreme Stakes: Clarence Thomas and Ketanji Brown Jackson Clash Over Equity in Law”

As the conversation on Reparation for Black Americans heat up, What plan does American has to repair Black students in public education in the mist of the Reparation Conversation for Black Americans?

Justice Ketanji Brown Jackson

As the Court grapples with DEI and affirmative action, Justice Thomas warns of government-based race preferences while Justice Jackson defends diversity as vital to fairness and public trust.

In recent months, the U.S. Supreme Court bench has laid bare a sharp ideological divide over diversity, equity, and inclusion (DEI), particularly through the lens of affirmative action in education and employment.

Justice Clarence Thomas: DEI as Discrimination

Justice Thomas continues to voice strong opposition to any race-conscious policies. In the June 5 Ames v. Ohio Department of Youth Services decision, although writing separately, he underscored that DEI and affirmative-action programs often culminate in "overt discrimination against those perceived to be in the majority"—a perspective grounded in his firm belief that the Constitution demands strict colorblindness.

Thomas maintains a long-standing view that government may not grant preferences based on race—even with positive intent—a position reflected throughout his judicial record, from Gratz v. Bollinger to Parents Involved .

Justice Ketanji Brown Jackson: Advocating for Contextual Understanding

By contrast, Justice Jackson has emerged as a vocal defender of race-conscious remedies and critic of purely textualist interpretations. In the same Ames ruling, she authored the unanimous opinion — rejecting the “background circumstances” test under Title VII — asserting that anti-discrimination laws should equally protect every individual, regardless of group identity. Beyond statutory interpretation, Jackson has defended DEI as a pillar of public confidence in the judiciary itself. In March, she emphasized that diverse institutions better reflect society and reinforce trust in legal outcomes. Additionally, her dissent in the landmark 2023 Students for Fair Admissions rulings condemned the majority’s colorblind stance as “a tragedy for us all,” signaling her commitment to race-conscious admissions policies.

Bottom Line: Programs that involve race as a factor in hiring, funding, or recruitment—especially when federally funded—must pass a rigorous legal standard. Courts and agencies are less deferential to DEI justifications post-SFFA.

This ideological clash influences more than academic admissions—it touches on employment law, federal contracting, and public perceptions of the Court's legitimacy. As the Trump administration moves to dismantle DEI frameworks, the Supreme Court’s current posture, shaped by both Thomas and Jackson, underpins the unfolding legal landscape.

Private DEI Grant Program Under Legal Fire: The Fearless Fund Case

A recent legal battle involves the Fearless Fund, a private VC-style grant initiative providing $20,000 grants exclusively to Black women entrepreneurs. In June 2024, the U.S. Court of Appeals for the 11th Circuit issued a preliminary injunction blocking these grants. It ruled that, despite their remedial intent, the program unlawfully excludes non-Black applicants and thus falls outside exceptions under 42 U.S.C. § 1981

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This case represents a pivotal moment: it extends the Supreme Court’s anti–race-conscious reasoning (from 2023’s Students for Fair Admissions) into the private domain. Legal observers warn that it might pave the way for challenges to other private DEI initiatives in corporate or nonprofit settings. The fund is now preparing for possible Supreme Court review.

Federal Funding Cuts to DEI in Education: The Sacred Heart Example

Another flashpoint involves Sacred Heart University in Connecticut. In February 2025, the U.S. Department of Education rescinded a $3.38 million federal grant for a teacher residency program in Bridgeport and Stamford. The department cited the program's DEI components as potentially discriminatory under federal civil rights law.

Educators and locals are alarmed, warning that the loss jeopardizes efforts to recruit and retain teachers in underserved districts—an essential equity initiative.

Private grants or selective scholarships based solely on race or gender now face heightened legal scrutiny under 42 U.S.C. § 1981 in light of the Fearless Fund ruling.

The Fearless Fund, a private organization, launched a grant contest for Black women entrepreneurs. The American Alliance for Equal Rights (founded by Edward Blum, architect of the anti-affirmative action movement) sued the fund under 42 U.S.C. § 1981, which prohibits racial discrimination in the making and enforcement of contracts.

Why the Court Blocked the Program?

 Section 1981 Applies to Private Entities

1. Although § 1981 was originally passed to protect Black citizens post-slavery, courts now interpret it to ban all race-based contract discrimination—even in private, voluntary contests.

2. The 11th Circuit held that excluding non-Black applicants from participating violated § 1981 because it denied them “equal rights to make contracts.”

   
   

   First Amendment Defense Rejected

   1. The Fearless Fund argued the contest was a form of protected expression—like charitable speech or selective association.

   2. The court said: this wasn’t expressive speech, it was a commercial transaction, so anti-discrimination law prevails.

   
   

   No Narrow Exception for Remedial Action

   1. The court emphasized that “benevolent racial discrimination” is still discrimination under § 1981.

   2. The intent to uplift historically disadvantaged groups didn’t immunize the program.

Bottom Line: Even in the private sector, courts are increasingly applying colorblind legal interpretations. If a program explicitly limits participation by race—even to remedy past discrimination—it’s vulnerable under § 1981.

Sacred Heart University’s teacher residency program in underserved Connecticut districts was funded by a $3.38 million federal Department of Education grant. The program prioritized hiring from underrepresented racial and cultural backgrounds. In 2025, the DOE revoked the funding, saying the program violated federal civil rights law.

Title VI of the Civil Rights Act (1964)

1. Title VI prohibits any program receiving federal funds from engaging in discrimination based on race, color, or national origin.

2. The department ruled that race-based selection criteria—even if well-meaning—constituted exclusion of other groups.

Strict Scrutiny Applied to Race-Based Programs

1. Since Students for Fair Admissions v. Harvard (2023), federal agencies and courts apply “strict scrutiny” to race-conscious programs—meaning they must serve a compelling interest and be narrowly tailored.

2. The DOE concluded Sacred Heart’s DEI-based hiring goals were not narrowly tailored enough to justify the use of race.

Shift in Enforcement Approach

1. This marks a departure from Obama- and early Biden-era guidance, where DEI goals in education were promoted and funded.

2. The department now interprets equity-based programming more cautiously, likely influenced by the current Supreme Court’s posture.

Public or federally funded DEI programs may also be vulnerable, as shown in the Sacred Heart case, where federal grant conditions are enforced on universities and institutions.

These rulings are shaping a post-affirmative action environment, where DEI must be justified with race-neutral proxies and broader, legally defensible criteria.

Justice is Blind

In-Closing, As legal challenges continue to unravel affirmative action and DEI efforts across education and the private sector, the Black American community stands at a pivotal crossroads. With California’s Prop 209 still prohibiting race-conscious programs in public institutions, and national momentum shifting toward “colorblind” policy interpretations, the stakes have never been higher. These rulings don’t just raise legal questions—they spark cultural ones about representation, justice, and repair. In this critical moment, as organizers and advocates consider pushing to repeal Prop 209, the question must be asked: How do we, as a community, define equity for ourselves—and what are we willing to fight for to secure it?