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02/26/2022

John McGinnis on the Harvard Admissions Case and the Original Meaning of Title VI
Michael Ramsey

At Law and Liberty, John McGinnis, Precedent Does Not Protect Preferences. From the introduction:

This fall, the Supreme Court will hear claims that two colleges are engaging in racial discrimination in their admissions programs in violation of Title VI of the Civil Rights Act. In Students for Fair Admissions v. Harvard, students of Asian descent have alleged discrimination and shown, among much other evidence, that Harvard admits a slightly smaller percentage of Asian Americans ranked in first academic decile (based on scores and grades) than it does African Americans ranked in the fourth decile from the bottom. Students for Fair Admissions v. University of North Carolina raises similar issues. For instance, in the fifth academic decile, the admission rate of African American students is over forty percent greater than whites and students of Asian descent.  

Title VI reads simply: “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.” Title VI applies to all colleges that receive federal funds, including student aid. Because almost all colleges get some federal money, this is the most important case for higher education in decades.

The Court will consider whether to overrule its past cases, including Regents v. BakkeGrutter v. Bolinger,  and Fisher v. University of Texas, that permitted race-based affirmative action in admissions so long as it promoted “diversity” and was carried out through “holistic methods” rather than quotas. Thus, one of the central issues in next term’s cases will be the stare decisis effect of these prior cases. It will likely be argued that the earlier holdings should be reaffirmed because of a rule that gives particularly heavy weight to statutory precedent as opposed to constitutional precedent. But reliance on stare decisis to insulate these cases from reconsideration would be mistaken, regardless of whether the Court determines that underlying issue is statutory or constitutional.

And from later on:

Title VI is unambiguous when it comes to preferential admission on the basis of race. It tells us that “No person” can be “excluded from participation in, or be subjected to discrimination under any program . . .  receiving Federal financial assistance” on the ground “of race, color, or national origin.”

The language could hardly be clearer. Nevertheless, the earlier courts have not followed the text, but have instead interpreted the language as if it read like the Fourteenth Amendment’s somewhat broader “equal protection of the laws,” rather than the pellucid command of Title VI. But there is no relevant ambiguity in the meaning of “excluded from participation in” or “race, color, or national origin” that importing the Equal Protection Clause helps clarify. Title VI could have been written to follow the constitutional provision, but did not.

Indeed, far from clarifying any ambiguity, the decision to interpret Title VI’s clear language to follow the Equal Protection Cause necessarily made the cases more difficult. The Clause is more abstract and less specific than the statute. The Court majorities in Bakke and subsequent cases were thus more easily able to claim that, while the Clause imposed substantial scrutiny on any race-conscious programs, the benefits of diversity met that heavy burden.

And if there was any doubt about whether this statute precluded the affirmative action that the Court claimed the Equal Protection Clause permitted, as Justice John Paul Stevens noted in his dissent, the comments in the legislative history made clear that it prohibited discrimination regardless of the race of those discriminated against.