What the Divided Argument in the SCOTUS Affirmative Action Cases Could Mean


Having upended constitutional law and American life with regard to abortion, firearms regulation, and separation of church and state last Term, during the Term that begins in October the Supreme Court’s conservative supermajority will turn its attention to another hot-button issue in the culture wars: race-based affirmative action in admissions to colleges and universities. Depending on how broad a legal rule the Court announces, the two cases—one involving the University of North Carolina and the other, Harvard—could also mean the end of affirmative action in employment, contracting, and other settings.

When the Court agreed to hear the UNC and Harvard cases in January, it consolidated them for briefing and oral argument, but late last month, the Court split them apart again. Although the Court announced no reason for the change, one obvious explanation is that Justice Ketanji Brown Jackson—who was a member of the Harvard Board of Overseers during the time that the lower court record addresses—has recused herself from the Harvard case. By splitting the cases, the Court allows Justice Jackson to participate in the UNC case.

Severing the cases also allows the Court to attend to at least two important factual and legal differences between them. First, the Harvard but not the UNC case presents an issue that need not implicate affirmative action at all: alleged discrimination against Asian Americans. Second, UNC, as a state university, must comply with both the statutory anti-discrimination provision, Title VI, and the Equal Protection Clause of the Fourteenth Amendment; Harvard, as a private institution, must comply with only Title VI, as the Fourteenth Amendment binds only state actors.

Asian American Applicants and Diversity

One of the questions on which the Court granted review in the Harvard case asks: “whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.” The UNC case presents no parallel question.

Accordingly, the Court could rule for the plaintiffs in the Harvard case without weighing in on affirmative action. Although the district court and the appeals court ultimately rejected the plaintiffs’ factual representations regarding anti-Asian American bias, there is some evidence in the record that Harvard engages in stereotyping of Asian American applicants and applies stricter standards to them than to white applicants. If the Supreme Court were to credit that evidence, it could rule against Harvard without necessarily calling into question other aspects of its admissions policy. Discriminating against a racial minority group—even a so-called model minority—in favor of white applicants hardly counts as legitimate affirmative action.

Nonetheless, the Supreme Court is unlikely to rule for the plaintiffs in the Harvard case based on allegations of anti-Asian American discrimination. As the appeals court explained, statistical analysis of the record of applicants and admissions decisions during the relevant years calls into question the plaintiffs’ allegations of anti-Asian American bias. Thus, the appeals court concluded that the district court’s ruling for Harvard on this point was not “clearly erroneous.” In order to reverse the appeals court, the Supreme Court would have to find that the district court ruling was clearly erroneous—a very deferential standard of review under which trial court factual findings are rarely overturned.

Title VI

With the exception of the Thirteenth Amendment, the Constitution limits government actors only, not private ones. However, Congress sometimes enacts legislation applicable to private actors that parallels the constitutional provisions applicable to the government. In the 1978 Bakke case, a majority of the Court opined that Title VI of the 1964 Civil Rights Act—which forbids institutions receiving federal funds from discriminating based on “race, color, or national origin”—“goes no further than” the Equal Protection Clause in limiting the use of race in higher education admissions. Subsequent cases have treated Title VI and equal protection as essentially coextensive.

Yet that parallel may not be justified. After all, the wording of Title VI, which singles out three grounds of proscribed discrimination, is hardly identical to the wording of the Equal Protection Clause, which speaks in generalities. Yet in Bakke, five Justices more or less equated Title VI with the Equal Protection Clause. They did so in a pivotal solo opinion of Justice Lewis Powell and a concurring opinion of Justice William Brennan joined by three colleagues. The Powell and Brennan opinions rested their conclusion that Title VI essentially incorporates equal protection principles based on a canvas of the statute’s legislative history. In the years since, however, that kind of reliance on legislative history without any close attention to the wording of the statute has fallen out of favor. Were the Court writing on a clean slate, it might well conclude that the statutory and constitutional obligations differ.

In its high-profile rulings on abortion and firearms last Term, the majority emphasized the importance of looking to the text and history of a provision—with special focus on the immediate historical context at the time of adoption. Taking that approach, one could conclude that the Equal Protection Clause permits race-based affirmative action, in light of such institutions as the Freedmen’s Bureau during Reconstruction. But applying the conservative Court’s preferred mode of textualism in statutory interpretation, one might also think that Title VI flatly forbids any use of race in admissions at colleges and universities that receive federal funds—which is what Justice Stevens and three other Justices thought in Bakke (although the Stevens opinion also relied on legislative history to an extent that contemporary textualists would not).

To be clear, in my view, neither the Equal Protection Clause nor Title VI invalidates affirmative action programs. My point here is simply that there is at least the potential to analyze the provisions separately from one another. Perhaps they really are coextensive. Perhaps Title VI is stricter than the Equal Protection Clause. Or vice-versa. The key is that the assumption of equivalence between the two standards is hardly a necessary result of the contemporary Court’s approach to either constitutional or statutory interpretation.

Does that mean that we could see a split decision based on the differences in wording and history between the statute and the Constitution? Probably not. For one thing, in neither case did the petition present the question whether to re-examine the practice of treating Title VI and the Equal Protection Clause as co-extensive. And even if the Court were to re-examine the issue, stare decisis counsels in favor of retaining the practice, absent a showing that it is very much mistaken.

A Silver Lining?

There is, moreover, a very good reason to treat Title VI and the Equal Protection Clause as co-extensive. The Civil Rights Act of 1964 is what Professors William Eskridge and John Ferejohn have aptly called a “super-statute” that has become deeply embedded in American life. Although Congress could repeal a super-statute using the same procedure it uses to repeal any other statute, unless and until it does so, a super-statute has a quasi-constitutional status.

Furthermore, even without looking to legislative history in ways that textualists would disapprove, it is clear that the Civil Rights Act of 1964 originally had and continues to have the broad social meaning of extending constitutional norms previously applicable only to government actors to private actors like the proprietors of the lunch counters that figured in the civil rights movement. Indeed, Title II, which contains the public accommodations provision, does just that. Against that backdrop, it makes perfect sense to hold private colleges and universities to the same standard with respect to race discrimination as the Equal Protection Clause applies to public colleges and universities.

A full-throated defense of the equivalence between Title VI and the Equal Protection Clause could also bring with it an important collateral benefit. In Bostock v. Clayton County, the Court, in a majority opinion by Justice Neil Gorsuch, held that the prohibition on sex discrimination in employment in Title VII of the Civil Rights Act of 1964 encompasses a prohibition on discrimination based on sexual orientation or gender identity. Sauce for Title VI and race should be sauce for Title VII and sex. Therefore, Bostock should carry the implication that the Court’s cases construing the Equal Protection Clause to presumptively forbid official sex discrimination also presumptively forbid sexual orientation and gender identity discrimination. Treating Bostock as expressing a constitutional principle, not just a statutory one, would have important implications across a range of contexts, including same-sex marriage.

In the wake of Dobbs v. Jackson Women’s Health Org.—which overruled the constitutional right to abortion—numerous observers have worried that other so-called privacy rights might also fall, including the right to same-sex marriage recognized in Obergefell v. Hodges. To be sure, Justice Samuel Alito’s Dobbs majority opinion purported to reassure readers that the ruling should not “be understood to cast doubt on precedents that do not concern abortion.” However, Justice Clarence Thomas, who joined the Dobbs majority, also concurred separately, saying that he and his colleagues “should reconsider all of” the Court’s privacy “precedents, including . . . Obergefell.” Taking its cue from Justice Thomas rather than the majority, the House of Representatives thus recently passed a bill that would give federal statutory protection to same-sex marriage. Should that bill fail to pass the Senate, or if it passes but is successfully challenged in the courts as beyond the scope of congressional power, same-sex couples will need to depend on Obergefell. If so, the Bakke logic regarding Title VI’s relation to equal protection could be invoked with respect to Title VII as construed in Bostock.

That said, no one should expect the Court to address Bostock’s implications for the constitutional right to same-sex marriage in the Harvard and UNC affirmative action cases. Indeed, it is unlikely that the Court will even reconsider Bakke’s equation of Title VI and equal protection. Still, leaving that equation in place would be a silver lining to an otherwise very dark cloud if the Court holds that Title VI and equal protection bar all race-based affirmative action. Such a fundamentally equality-denying holding could be used in a future case to preserve a different kind of equality. Of course, that would be cold comfort for proponents and beneficiaries of race-based affirmative action, but with this reactionary Court, one takes whatever comfort one can get.

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