Title VI states:
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. [Emphasis added.]
In his separate opinion for four justices in Regents of the University of California v. Bakke, Justice John Paul Stevens observed that the “plain language” of Title VI of the Civil Rights Act of 1964 was “crystal clear”: “Race cannot be the basis of excluding anyone from participation in a federally funded program.” Again: “In unmistakable terms the Act prohibits the exclusion of individuals from federally funded programs because of their race.” Further: The language of Title VI is “perfectly clear,” and its “legislative history reinforces this reading”: “the proponents of the legislation gave repeated assurances that the Act would be ‘colorblind’ in its application,” and “it seems clear that the proponents of Title VI assumed that the Constitution itself required a colorblind standard on the part of government.”
Given the separate “special admissions program” at issue in Bakke, Justice Stevens speaks of Title VI’s ban on “excluding” anyone on the basis of race. Title VI of course equally bans discriminating against someone (“subject[ing] to discrimination”) on the basis of race.
As I’ve stated, I believe that the simplest and most straightforward way for the Court to decide the Harvard and UNC racial-preference cases is to apply Title VI. The sole obstacle to doing so is whatever weight the Court’s previous botches of Title VI are entitled to. Rightly or wrongly, the Court ordinarily gives very strong weight to its statutory precedents. I sketch several reasons why that weight should be trivial here:
1. In their separate opinions in Bakke, Justice Powell and four other justices (in the joint opinion of Justices Brennan, White, Marshall, and Blackmun) grossly misread Title VI “to proscribe only those racial classifications that would violate the Equal Protection Clause.” But that gross misreading was not part of any holding in Bakke. As Justice O’Connor wrote 25 years later in her majority opinion in Grutter v. Bollinger (2003), the Bakke “decision produced six separate opinions, none of which commanded a majority of the Court,” and the “only holding for the Court in Bakke was that a ‘State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.’” (Emphasis added.)
(Mea culpa for my own previous mistaken reference to “Bakke’s Title VI holding.”)
2. In Grutter, Justice O’Connor’s majority opinion summarily rejected Barbara Grutter’s Title VI claim in a single sentence. After summarizing her conclusion that the Equal Protection Clause did not prohibit the University of Michigan law school’s use of race in its admissions decisions, O’Connor wrote:
Consequently, petitioner’s statutory claims based on Title VI and 42 U. S. C. § 1981 also fail. See Bakke, supra, at 287 (opinion of Powell, J.) (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”).
Despite having observed that there was no holding in Bakke on Title VI, O’Connor somehow thought it proper to treat Justice Powell’s solo opinion as though it were binding precedent on this question. While O’Connor’s single sentence would appear to qualify as a holding on the scope of Title VI, it is difficult to imagine how a statutory holding could receive less careful consideration than O’Connor gave it. Why should the doctrine of stare decisis insulate from reconsideration a holding that received such frivolous consideration in the first place?
3. As Justice Stevens pointed out in his Bakke opinion, the Court’s egregiously wrong interpretation of Title VI frustrated the Court’s “settled practice [of] avoid[ing] the decision of a constitutional issue if a case can be fairly decided on a statutory ground.” Instead, it merged the constitutional (Equal Protection) issue into the statutory issue. Correcting that error will restore the proper role of the doctrine of constitutional avoidance in this area of the law.
4. As law professor John McGinnis explains, because the Court’s misinterpretations of Title VI “make rulings on Title VI indistinguishable from constitutional rulings, it is constitutional stare decisis that becomes the relevant doctrine”—and “that doctrine is much more flexible than statutory stare decisis.”
5. The Court has long since repudiated the purposivism that pervades the two offending opinions in Bakke. Indeed, just two years ago all nine justices did so in the competing opinions on Title VII (a similar provision in the same Civil Rights Act of 1964) in Bostock v. Clayton County(2020). As law professor Cass Sunstein argues in “Gorsuch Paves Way for End of Affirmative Action,” “If you read [the majority opinion of Justice] Gorsuch, you would think that affirmative-action programs are doomed, because they plainly discriminate because of race.” Similarly, law professor Jeannie Suk Gersen (in “Could the Supreme Court’s Landmark L.G.B.T.-Rights Decision Help Lead to the Dismantling of Affirmative Action?”) sees “reason to think that Bostock’s formalist articulations on discrimination will bolster a conservative decision to dismantle race-conscious admissions policies,” as “affirmative-action policies necessarily consider race in their treatment of individuals.”