Cass Sunstein notes that it’s hard to get from the text or original understanding of the Fourteenth Amendment to the conclusion that public universities can’t prefer blacks or Hispanics in admissions. He notes, further, that the conservatives on the Court do not even try to ground their decisions on racial preferences in the text or original understanding, even though they usually argue for that approach. Sunstein cites an op-ed I wrote a few years ago agreeing with these arguments.
I don’t think, though, that these points get Sunstein as far as he wants to go in the University of Texas case now before the Supreme Court. Even if the Fourteenth Amendment doesn’t bar what the university is doing, the Civil Rights Act of 1964 sure seems to. (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” — language that, as far as I know, has not been discarded).
The worst aspect of the Court’s 1978 Bakke decision, legally speaking, was its overriding of the act. The Court “reasoned” that the Civil Rights Act was an attempt to implement the Fourteenth Amendment, and therefore meant whatever the Court thought the amendment did; so if the Court thought racial preferences were consistent with the amendment, they were consistent with the statute too. There’s no good reason I can see to leave these letters dead.
And if the case can be decided on statutory grounds, there’s no need to reach the constitutional question at all.