On October 31, the Court will hear oral argument in a pair of cases challenging the role of race in admissions decisions at Harvard College and the University of North Carolina: Students For Fair Admissions v. Harvard and Students For Fair Admissions v. University of North Carolina.
Two weeks ago, I criticized Harvard College’s evasive doublespeak concerning the district court’s contradictory and incoherent findings. I’m working my way through the legal issues in the cases and in this post will address Title VI of the Civil Rights Act of 1964.
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.]
Title VI applies to both private and state entities, and it defines the term “program” to mean “all the operations of … a college, university, or other postsecondary institution, or a public system of higher education.” In other words, a college that receives federal funding for any of its operations is bound not to discriminate on the basis of race throughout all of its operations.
Both Harvard, a private entity, and UNC, a state entity, receive federal funding, and are therefore required to comply with Title VI’s ban on racial discrimination.
As Justice Scalia once wrote of a companion part (Title VII) of the Civil Rights Act of 1964, Title VI’s explicit guarantee that colleges receiving federal funds will not discriminate on the basis of race has “a clarity which, had it not proven so unavailing, one might well recommend as a model of statutory draftsmanship.” But in Regents of University of California v. Bakke (1978), five justices combined to hold that Title VI doesn’t mean what it plainly says.
In his controlling solo opinion in Bakke, Justice Powell extracted “from a full examination of the legislative debates” on Title VI a supposedly “clear legislative intent” that Title VI would “proscribe only those racial classifications that would violate the Equal Protection Clause.” In a separate joint opinion, Justices Brennan, White, Marshall, and Blackmun similarly concluded, based on their own assessment of the purpose and legislative history of Title VI, that “Title VI goes no further in prohibiting the use of race than the Equal Protection Clause of the Fourteenth Amendment itself.”
In dissent on this issue, Justice Stevens—yes, John Paul Stevens—joined by Chief Justice Burger and Justices Stewart and Rehnquist, concluded that the “plain language” of Title VI, its “crystal clear” meaning, is that “race cannot be the basis of excluding anyone from participation in a federally funded program.” Stevens found further that the legislative history “reinforces” this “categorical prohibition,” as “the proponents of the legislation gave repeated assurances that the Act would be ‘colorblind’ in its application.”
If Title VI is allowed to mean what it says, the Harvard and UNC cases are simple: Both colleges indisputably give racial preferences in admissions to African American and Hispanic applicants and, in so doing, discriminate against Asian American (and white) applicants. Both colleges reject a “colorblind” system.
Under Bakke’s countertextual reading of Title VI, however, the question whether Harvard, as a private entity, has violated Title VI would require the Court to determine what the Equal Protection Clause would demand of Harvard if Harvard were a state entity, and the question whether UNC, as a state entity, has violated Title VI would merge entirely into SFFA’s separate claim that UNC’s admissions practices violate the Equal Protection Clause.
The straightforward way for the Court to resolve these cases is to overrule Bakke’s Title VI holding and to apply the plain language of Title VI. Addressing Bakke’s “egregiously wrong interpretation of Title VI,” law professor John McGinnis explains in this essay why the stronger role that stare decisis ordinarily plays on statutory issues is inappropriate here. (SFFA, in what I gather is a strategic effort to force a decision on the Equal Protection issue, hasn’t asked the Court to overrule Bakke’s misreading of Title VI. Perhaps that weighs against the Court’s doing so, but it shouldn’t foreclose it.)
I will note that Harvard law professors Cass Sunstein and Jeannie Suk Gersen have separately argued that Justice Gorsuch’s majority opinion in Bostock v. Clayton County (2020), which was joined by all the liberal justices and the Chief Justice, undermines Bakke’s Title VI holding, as it rejects the purposivist path to that holding. (So do the three dissenters in Bostock.) As Sunstein argues in “Gorsuch Paves Way for End of Affirmative Action,” “If you read Gorsuch, you would think that affirmative-action programs are doomed, because they plainly discriminate because of race.” Similarly, 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.”