On June 29, the Supreme Court struck down the Harvard and University of North Carolina’s affirmative action policies. The Court’s newest Justice, Ketanji Brown Jackson, who only participated in the UNC case, penned a 29-page dissent defending the legality of affirmative action.
Tucked into page 23 of that dissent was a dramatic statistic that received much press praise but has since attracted criticism from the legal community because of its “mathematical absurd[ity].”
Jackson, laying out an argument for affirmative action in the context of medical education, described the purported benefits of having more black physicians. That argument included the disputed claim:
For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.
Lawyer Ted Frank, in a Wall Street Journal column, noted the mathematical impossibility of this assertion. Frank points out that “more than doubl[ing]” the survival rate of black newborns would require that black newborns had a survival rate of less than 50%.
Instead, “the actual [black newborn] survival rate is over 99%,” a survival rate “mathematically impossible to double.”
The footnote for Jackson’s statistic refers to a brief the Association of American Medical Colleges (AAMC) submitted as an interested third party. The AAMC’s brief in turn cites a 2020 study of the impact of a physician’s race on the mortality rate of newborns.
Frank criticized Jackson’s clerks on Twitter for failing to vet the erroneous claim and noted that he correctly predicted the claim would make its way into the opinion:
Frank, who also took issue with the methodology of the study, noted the study does not make the claim cited in the AAMC brief and by Jackson:
The study makes no such claims. It . . . 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).
The study found that black newborns attended to by black physicians had a mortality rate of about half that of black newborns attended to by white physicians. Put another way, the study shows a halving in mortality rate, not a doubling in survival rate.
Professor Jonathan Turley of the George Washington University Law School took to Twitter to comment on Jackson’s use of the erroneous statistic, which Turley deemed important to her reasoning. Turley also criticized the practice of “dump[ing] major studies” into briefs, which he argued makes for shakey opinions:
On July 7, Norton Rose Fulbright, the firm that prepared the brief on behalf of the AAMC, sent a letter to the Court “to clarify a statement” in the AAMC brief. The clarification letter acknowledged the misstatement of the study’s findings and expressed “regret [at] any confusion that may have been caused by the statement in the brief.”
The firm, however, contended in its letter that regardless of how one summarizes the study’s findings, “the study strongly supports the statement in Justice Jackson’s dissent that ‘the diversity that UNC pursues for the betterment of its students and society . . . saves lives.'”
The letter of clarification:
The AAMC’s brief:
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