Messaging on Affirmative Action

Narrative Principles for Discussing SFFA v. Harvard and SFFA v. University of North Carolina

October/November 2022

Our constitutional values could not be more important as we anticipate the Supreme Court arguments on several important cases this term. This memo offers messaging advice for promoting diversity and equal opportunity in the context of  SFFA v. Harvard and SFFA v. University of North Carolina, constitutional challenges to college affirmative action policies.

In order to foster a diverse student body and overcome obstacles to educational opportunity, Harvard University and the University of North Carolina consider qualified students’ racial or ethnic backgrounds along with academic achievement and other qualities like leadership, socioeconomic status, and athletic or artistic talent. The U.S. Supreme Court will consider whether these policies violate the equal protection clause of the 14th Amendment to the U.S. Constitution, which bars racial discrimination by government entities, including public universities. Our hope is that the Supreme Court will ensure that everyone fully enjoys the protections and rights provided in our Constitution by protecting affirmative action. However, it is widely expected that the Supreme Court will ban affirmative action programs in its decision on these cases.

The Court will hear arguments on October 31, 2022. This communications advice is intended to help mobilize supporters of diversity and equal opportunity while persuading undecided audiences. It is based on opinion and media research as well as practical experience from around the country.

Messaging Advice

1. Lead with Values. Undecided audiences respond best when we lead with values they share, rather than dense facts or political rhetoric. In these two affirmative action cases, the most important values are diversity, opportunity, and the national interest. However, other values to consider are equality, inclusivity, and mobility.

  • Expanding Opportunity: It is in everyone’s interest to see that talented students from all backgrounds get a close look and a fair shot and have the chance to overcome obstacles to educational opportunity.
  • The Benefits of Diversity: Learning with (and from) people from different backgrounds and perspectives benefits our students, our communities, our work force, our military, and our country as a whole.
  • Preventing Racial Isolation: It is important that schools are able to build student bodies that foster meaningful diversity that does not isolate any one group.
  • Our National Interest: Fostering educational diversity and greater opportunity is critical to our nation’s future in a global economy and an increasingly interconnected world.

2. Explain that Affirmative Action furthers the National Interest When It Comes to American Demographics. The U.S. Census confirms that American society is becoming more and more diverse with most young people originating from historically underrepresented racial and ethnic groups. These changes mean that Americans must be able to learn and successfully navigate in increasingly diverse environments.

  • Colleges, as institutions that train future leaders and participate in this world, are tasked with the responsibility of ensuring that students learn how to navigate diverse environments. Affirmative action provides colleges with the ability to immerse students in diverse environments, allowing them to best teach students how to successfully work within these environments in the future.

3. Emphasize that the Fourteenth Amendment was Intended to Expand Opportunity – Not Restrict It. It is concerned with protecting equal justice under law and was intended to help African Americans achieve opportunity in the United States.

  • As one of the Reconstruction Amendments, the Fourteenth Amendment’s goal was to “grant […] citizenship and equal civil rights to African Americans and enslaved people who had been emancipated after the American Civil War.”[1] The Fourteenth Amendment was intended to help ensure that newly freed African Americans were able to experience full citizenship and the related rights of citizenship. The Fourteenth Amendment sought to provide African Americans with the opportunities and rights that they had been denied during slavery, but it is now being used to limit their rights. This history is an important reminder of how the Court is deviating from our values of equal justice and opportunity.

4. Discuss the Importance of a Judiciary that Respects Precedent and the Rule of Law. The Court’s approach to these cases, as well as the future direction of the Court, seems bleak given recent changes in its composition. It is nevertheless important to fight to protect the hard-fought, historic gains our country has made in promoting and preserving opportunity while critiquing the Supreme Court’s shortcomings. Advocates should encourage the Supreme Court justices to preserve prior decisions that protected constitutional rights, while seeking remedies to years of undemocratic practices that altered the Court’s composition.

  • It is well known that “public trust and confidence in our government institutions is critical to the function of our democratic republic.”[2] In the judicial system, the principle of precedent, or stare decisis, is the idea that a court respects and defers to decisions before it. This concept is key to preserving legitimacy, trust, and confidence in courts, which are at historic lows. For the sake of democracy, it is important that the Court respects past precedents protecting the use of race in college admissions processes.

For a summary of the litigants and their main arguments, go here.


[1] Britannica, https://www.britannica.com/topic/Fourteenth-Amendment

[2] Natalie Anne Knowlton, Trusting the Public’s Perception of Our Justice System, IAALS (Aug. 27 2020), https://iaals.du.edu/blog/trusting-public-s-perception-our-justice-system.

Supporting Judge Ketanji Brown Jackson’s Historic Nomination

President Biden made history by nominating Judge Ketanji Brown Jackson to serve as Associate Justice of the U.S. Supreme Court and people have shared their enthusiastic support across the nation. Nevertheless, Judge Jackson has been subjected to hostile and disrespectful questioning from senators, which reflects how the standards of civility shift when a Black woman is in question. Given these attacks, we must continue to do the hard work of contextualizing this moment concerning what it means for the future of our country. We must continue to highlight the significance of this nomination for the aspirations we have toward breaking down systemic barriers that stand in the way of progress.  We need Supreme Court Justices who reflect the integrity and honor that Judge Jackson has shown throughout her career.

The Opportunity Agenda (TOA) strongly encourages communicators, advocates, and anyone concerned with social justice to uplift the importance of this nomination. Below is communications advice for talking about Judge Jackson’s nomination informed by recent opinion research.

Public Opinion

Despite attempts to tarnish Judge Jackson’s reputation, a Gallup poll found that Judge Jackson enjoys the highest support of any Supreme Court nominee since Chief Justice John Roberts, with 58 percent of people in the United States in favor of her confirmation.[1] An NBC National Poll found she had “the highest net support rating of any Supreme Court nominee since 2005.”[2]

This polling is likely due to her extraordinary background and credentials, along with the advocacy of groups like #SheWillRise and others. Through consistent message engagement, advocates can help promote a media and cultural landscape that is favorable to Judge Jackson while also effectively pivoting toward calling out unwarranted attacks when they arise.

Values-Based Messages

Because our research consistently shows that leading with values is an effective approach to communication, we encourage people to adopt a “VPSA” format in drafting their messages about Judge Jackson. We have described VPSA below and provided sample messages that adopt this format.

VPSA

  • Leading with VALUES creates broad points of agreement and shared goals that will resonate with nearly any audience.
  • Being explicit about the PROBLEM, and how it threatens shared values, creates a sense of urgency and connects individual stories to broader systems and dynamics.
  • Offering a SOLUTION gives audiences a sense of hope and motivation. The best solutions are connected directly to the problem offered and make clear where the responsibility for change lies.
  • Assigning an ACTION gives the audience a concrete next step that they can picture themselves doing and creates a feeling of agency.

Sample Actions

TOA encourages people to continue their advocacy for Judge Ketanji Brown Jackson by:

  1. Writing newspaper editorials or blogs that connect Judge Jackson’s nomination to their own shared experience.
  2. Posting on social media to celebrate her background and highlight how she reflects our shared values.
  3. Talking with those close to you about the significance of her nomination and likely confirmation to the Supreme Court.

Sample VPSA Messages

Judge Jackson is Committed to Equal Justice Under Law

The words “Equal Justice Under Law” are engraved into the entrance of the U.S. Supreme Court, and Judge Jackson’s historic nomination illustrates that this country is slowly coming closer to this ideal. Judge Jackson is on track to be the first Black woman to serve on the Supreme Court and has led a life of public service through her work as a judge, public defender, and on the U.S. Sentencing Commission.

Yet, some have tried to question her background because of this public service. As a judge and lawyer, she worked to ensure that everyone she served was treated fairly and equally. She was fair, measured, and consistent in reflecting the value of “Equal Justice Under Law,” but opponents are trying to distort her record.

Consequently, it is important to push for Judge Jackson’s speedy confirmation to the Supreme Court given her commitment to equal justice. We must continue to talk about the importance of her nomination. It is historic not only because Judge Jackson is a Black woman, but because she would help to realize a foundational goal of our highest court—Equal Justice Under Law.

Reach out to your local newspaper to submit a Letter to the Editor about why this nomination is so critical for you and your community

Judge Jackson Reflects the Ambitions of Americans

The American identity is inseparable from the ideal of achieving full opportunity, where everyone has a fair chance to reach their full potential. Judge Brown’s story as a public-school graduate from Miami to a current nominee to the U.S. Supreme Court is an example of a classic American success story. James Truslow Adams described this dream as “that dream of a land…with opportunity for each according to ability or achievement…a dream of social order in which each man and each woman shall be able to attain to the fullest stature of which they are innately capable, and be recognized by others for what they are, regardless of the fortuitous circumstances of birth or position.” Judge Jackson worked hard in the face of extraordinary challenges and has achieved an exemplary stature as a jurist and lawyer committed to public service.

For far too long, access to education, advancement in the legal profession, and countless other hurdles have stood in the way of Black women aspiring to someday join the Supreme Court. Nevertheless, Judge Ketanji Brown Jackson has worked hard to obtain preeminent qualifications that exemplify what is possible when we expand access to opportunity.

By having Ketanji Brown Jackson as a Supreme Court Justice, the high court will be better positioned to more effectively confront those systemic hurdles that stand in the way of true opportunity and equal justice. The court will be hearing cases that might shift our access to opportunity in this country, and Judge Jackson’s background and experiences will only enrich the perspectives on the court.

In order to share your support for Judge Jackson’s speedy confirmation, tweet at your senator about why you support Judge Jackson’s confirmation to the Supreme Court, or post on social media about what this nomination means to you using #ConfirmJackson.

Talking About the Supreme Court

Narrative Principles for Discussing Supreme Court Cases

As the Supreme Court prepares to issue its final decisions of the term, it is vital that we remember the values which underly the essential liberties we strive for. Although our hope is that the Court will ensure that everyone can fully enjoy the protections and rights provided by the Constitution, there are a number of cases pending that could set us back on this aspiration. This includes challenges regarding the extent to which local governments can take steps to prevent organizations from discriminating against LGBTQ couples who want to foster children; whether states can constitutionally restrict voting; and whether the healthcare protections in the Affordable Care Act remain constitutional, among other important cases.

The Opportunity Agenda strongly believes that it is important to uplift the need to protect the hard-fought gains our country has made in promoting and preserving opportunity, while also acknowledging that these hard-fought gains are, in many respects, still incomplete. It is on this premise that we prepare ourselves to critically analyze Supreme Court decisions that might undermine the very progress that has been achieved.

We encourage communicators, advocates, and anyone concerned with social justice to uplift the important point that Supreme Court justices must preserve prior decisions that protect and advance constitutional rights. Below are some suggestions for how to do this, informed by recent opinion research for talking about the Supreme Court as it gets ready to issue these end-of-term decisions.

General Advice

  1. Focus on what Supreme Court decisions mean to our shared values. Most audiences are not at all familiar with – or even focused on – the outcomes of Supreme Court cases and their impressions will be shaped by headlines and topline rhetoric. It’s important to find ways to engage at that level. A great way to do this is to focus on values, such as reminding people of the kind of country we want to be and drawing on our best ideals. Consider what the decision suggests for the celebration or undermining of those values. Values: Justice, Freedom, Dignity, Fairness, Opportunity, Democracy, Family.
  2. Don’t focus on what a decision is not. Discuss what it is. Explaining the legal details of what the case does not mean is less powerful than affirmatively stating what it does mean. Spending too much time “myth busting” or telling audiences that the ruling does not outlaw abortion, for instance, only repeats the phrase and strengthens it in audiences’ minds. Remember that “myth busting” doesn’t result in audiences remembering your point – it instead results in the further penetration of the points that opponents make.
  3. Pivot to solutions and action. While reporters covering the case may want “just the facts,” there are many opportunities to remind audiences of the solutions that the case highlights, and what they can do to make those solutions happen. Progressive and base audiences will be fired up to do something to celebrate or express anger or discontent, so make sure to provide a concrete action. Sympathetic audiences need to be primed to feel as though their efforts matter, and that they can be both despairing of this moment in history, while at the same time remembering that our country’s core principles and history are to slowly make progress even through challenging times. Undecided audiences need to hear the positive alternatives that are possible. Values: Pragmatism, Common Sense, Innovation, Determination to Do the Right Thing, Our Shared Responsibility to Fix Flawed Policies, Solidarity.

Specific Advice for the Pending Decisions

1. LGTBQ Justice and So-Called Religious Freedom

Fulton v. City of Philadelphia

The Supreme Court will be deciding whether the City of Philadelphia improperly terminated its relationship with a Catholic charity that refused to screen same-sex couples as foster parents. The City of Philadelphia refused to work with this charity because of its discriminatory screening practices. Now, the charity is arguing that this termination violated its right to freedom of religion. This case presents a conflict of rights in which the City of Philadelphia is concerned with same-sex couples’ right to be free from discrimination, and the charity is claiming that it has a right to religious freedom in its discriminatory decision not to work with same-sex couples.

Recent public opinion research is helpful in assessing how to respond to this case and the others that are before the Court this term. A recent study polled a nationally representative sample of 2,158 American adults about their views on upcoming Supreme Court decisions[1] The SCOTUS Study asked respondents whether they believed that requiring foster agencies to place children with same-sex couples violated the foster agencies’ right to religious freedom, and 52.2% of the public stated that it does violate these agencies’ right to religious freedom.

Table 1[2]

This finding suggests communicators and advocates should emphasize the government’s role in preventing discrimination and in ensuring that everyone is able to build a family with dignity. Emphasizing the government’s role in preventing discrimination and the importance of protecting everyone’s right to family and equal justice – including the rights of potential LGBTQ foster couples and their prospective foster children – will be critical. Moreover, communicators and social justice leaders should connect the outcome in the case to our shared values by describing how the outcome in this case might undermine or bolster local governments’ abilities to prevent discrimination.

Values to Uplift When Discussing This Case: Family, Equal Justice, Human Rights, Community, Empathy.

2. Affordable Care Act

California v. Texas

Following its 2012 decision upholding the Affordable Care Act, the Supreme Court will again be deciding upon a challenge to its constitutionality. The Court will decide on two main issues: (1) whether the individual mandate is constitutional; and (2) if the individual mandate is unconstitutional, whether it is nevertheless severable from the Affordable Care Act, allowing this Act to remain in force even if the individual mandate provision is no longer part of it. While it is possible that the Court will not decide upon the substance of the case and will instead find the parties who brought the case to not have standing, it is important to plan for the decision, nonetheless.

The SCOTUS Study found that 55.8% of respondents believed that the individual mandate is unconstitutional. This finding suggests that there is additional work needed to explain how the mandate broadens access to healthcare and is critical to a better-functioning healthcare system.

Table 2[3]

Nevertheless, most respondents (53.3%) stated that even if the individual mandate is unconstitutional, it should not affect the rest of the law.

Table 3[4]

If the Court strikes down the mandate and thereby strikes down Obamacare, it will be important to emphasize how the Supreme Court’s choice was excessive and that millions of Americans will be left uninsured by it.

Remind audiences of our responsibilities to our fellow human beings. Access to healthcare is incredibly important and should be uplifted as a value, and after enduring the COVID-19 pandemic, audiences may be more open to these messages than ever before. As we are starting to see glimmers of hope regarding the progression of the COVID-19 pandemic, it remains important to protect everyone’s access to healthcare.

Values to Uplift When Discussing This Case: Human Rights, Community, Health, Empathy, Compassion, Looking Out for One Another.

3. Voting Rights

Brnovich v. Democratic National Committee I

Following Donald Trump’s false claims about the 2020 election, his followers have initiated a massive effort to both continue the drumbeat promoting fraud and suppress voter turnout in many states. For example, Arizona passed a law that (1) prohibits people from getting assistance from others to drop off their ballots on their behalf, and (2) requires that provisional ballots be automatically discarded when a voter votes in the wrong precinct. According to the SCOTUS Study, voters are evenly split on how the Court should resolve these two issues.

Table 4[5]

Table 5[6]

The widespread, “big lies” about the 2020 election present unprecedented challenges to our democracy and warrant bold action. The response to the Supreme Court’s decision in this case should emphasize the Court’s role in ensuring that every citizen is able to exercise their right to vote. The Court’s decision may include a ruling about the appropriate standard for challenging voter suppression efforts, which may or may not make it more difficult to contest these threats to our democracy.

Values to Uplift When Discussing This Case: Democracy, Equal Justice, Human Rights, Community, Fairness.

4. Criminal Justice

Terry v. United States

Taharick Terry was convicted for possessing just 4 grams of crack cocaine, the equivalent weight of around four paper clips. He was sentenced to more than 15 years in prison because of a law that produced a 100:1 sentencing disparity for crack cocaine as compared to powder cocaine. This disparity contributed to gross racial inequities in sentencing by targeting the form of cocaine – crack cocaine – that is more prevalent in Black and brown, and lower-income, communities for grossly higher sentences than its powder form.

In 2010, President Obama and Congress reduced the disparity to 18:1 in the Fair Sentencing Act. In 2018, Congress passed the First Step Act, which allowed sentencing reforms to apply retroactively to people already sentenced in prison because of draconian sentencing laws. This case addresses whether offenses like Terry’s fit within the provisions that allow for less serious offenses to be re-sentenced. The decision in this case could have a broad impact on efforts to address some of the harms of excessive and racially biased sentencing laws.

Values to Uplift When Discussing This Case: Equal Justice, Fairness, Human Rights, Community, Family, Due Process.

Conclusion

As a general matter, it is important to communicate carefully, as the first read of any decision can sometimes mislead communicators into saying something they come to later regret, or to say something that isn’t quite the message that is important to uplift. It is therefore especially important to carefully review the Court’s holding(s) in each case and consult those who are working directly on interpreting and commenting about them. Sometimes it may be beneficial to narrowly construct any comments on a decision when formulating your response. Don’t comment until you’ve seen the facts and the lead party’s statement, as well as consulted with those most closely connected to the story that social justice leaders are recommending. Remember, the first statement you make will be the most powerful. Regardless of the outcome, it is beneficial to emphasize how values represent our vision for the aspirations we have for our country, and the importance of what the Supreme Court means to those values.


[1] Stephen Jessee, Neil Malhotra, & Maya Sen, “What Do The American People Think About the 2021 Supreme Court Cases? Results from SCOTUSPoll, a collaboration between researchers at the Harvard Kennedy School of Government, the Stanford Graduate School of Business, and the University of Texas” (April 22, 2021), https://projects.iq.harvard.edu/files/scotus-poll/files/scotuspoll-summary2021.pdf.

[2] Id. at 3.

[3] Id. at 4.

[4] Id. at 5.

[5] Id. at 6.

[6] Id. at 7.

Six Tips for Responding to Supreme Court Decisions

 

  1. Be cautious.

    Don’t comment until you’ve seen the facts and the lead party’s statement. Remember, the first statement you make will be the most powerful. Comment to shape the conversation, not argue with the opposition about what the decision means. Consider your audience and the big picture of what those who read your statement will take away from it, and remember that if you jump in and don’t have a well-thought out point of view, that’s likely to be what your audience will remember.

  2. Focus on what the case means to our shared values.

    Consider the decision through your audience’s eyes. Most audiences are not at all familiar with – or even focused on – the outcomes of Supreme Court cases and their impressions will be shaped by headlines and topline rhetoric. It’s important to find ways to engage at that level, while providing detailed legal arguments only for audiences who want that. A great way to do this is to focus on values. Consider what the case suggests for the celebration or undermining of those values.

  3. Avoid jargon…

    In favor of plainspoken and accessible language that tells a story your audiences can digest, and that will spark action. Include stories, imagery, and metaphors that are memorable and stay with audiences longer than legal points.

  4. Try to comment on the case, not the court.

    If you don’t agree with a decision, it’s tempting to admonish the court for being out of touch. But remember that the Supreme Court is considering multiple cases impacting a range of issues across the social justice spectrum. Attacking the ideological profile of particular justices without discussing their alignment (or misalignment) of values in relationship to a decision can undercut a more favorable decision they may make on another issue. The way around this is to speak about what the case means to our shared values and national identity, and how decisions do or do not reflect those values. It may make sense to criticize the ruling, and specific justices’ opinions, but do leave room for the possibility that the court could rule more favorably on other cases. Try to refrain from comments that write off the court in its entirety.

  5. Don’t focus on what the decision isn’t.

    Discuss what it is. Explaining the legal details of what the case doesn’t mean is not as powerful as affirmatively stating what it does mean. Spending too much time telling audiences that the ruling does not outlaw abortion, for instance, only repeats the phrase and strengthens it in audiences’ minds.

  6. Pivot to solutions and action.

    While reporters covering the case may want “just the facts,” there are many opportunities to remind audiences of the solutions that the case highlights, and what they can do to make those solutions happen. Base audiences, in particular, will be fired up to do something whether in a celebratory or angry mood, so make sure to give them something concrete that they can do.

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