Title VI Versus Equal Protection in Today's Affirmative Action Cases
by Michael C. Dorf
The two challenges to race-based affirmative action that the Supreme Court will hear today mostly overlap, but two factors distinguish them from one another. First, a full complement of nine Justices will participate in the University of North Carolina case, while only eight Justices will participate in the Harvard case (because Justice Jackson has recused herself). Second, UNC is bound by both the Fourteenth Amendment's Equal Protection Clause and Title VI of the 1964 Civil Rights Act, whereas Harvard is bound only by Title VI. Here I want to focus on that second factor. Much of the attention to the cases (including by me in my post on Friday) has focused on the constitutional issue, presented in only the UNC case. But the Court could avoid saying anything about the Constitution by ruling that the statute forbids race-based affirmative action.
Here's the key language of Title VI: "No person in the United States shall, on the ground of race, color, or national origin, be . . . subjected to discrimination under any program or activity receiving Federal financial assistance." In the Bakke case, Justice Powell's controlling opinion concluded that Title VI is coextensive with equal protection. On this point, Powell spoke for the Court, as he was joined by the four Justices (Brennan, White, Marshall, and Blackmun) who would have upheld UC Davis Medical School's admissions program against Bakke's challenge.
Accordingly, as a matter of precedent, there is no separate issue under Title VI. Harvard and other private colleges and universities face the same federal legal limits on the use of race in admissions as UNC and other public colleges and universities do. So why am I drawing a distinction?
For the fairly obvious reason that in each case, the first certiorari question is whether the Court should overrule Grutter v. Bollinger, the 2003 case in which the Court sustained the University of Michigan Law School's affirmative action program on the strength of and applying the rationale of the Powell opinion in Bakke. If the Court is willing to overrule Grutter--and let's face it, the Court's composition and the fact that it granted cert in the two cases strongly suggest it is--then it may also be willing to overrule the equation of Title VI with equal protection.
At this point, readers might be wondering something like this: But if we're explaining the matter in legal realist terms, then the conservative super-majority won't be interested in overruling the aspect of Bakke that equated Title VI with equal protection; they'll be content to say that Harvard loses under Title VI and UNC loses under both Title VI and equal protection.
That's a fair point. Nonetheless, observers interested in jurisprudence and methodology have reason to ponder how the Court might get there. As I noted last week and others have noted in numerous places, there are reasons to doubt whether the conservative super-majority's commitment to color-blindness is consistent with the original understanding of the Fourteenth Amendment. Perhaps the Court could attempt to avoid that problem by deciding both the Harvard and the UNC cases on Title VI grounds alone.
To be sure, to do that, the Court would have to overlook the evidence that the Congress that enacted Title VI in 1964 also did not think that it was adopting a principle of color-blindness. Powell's Bakke opinion reasoned this way:
Examination of the voluminous legislative history of Title VI reveals a congressional intent to halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the Constitution. Although isolated statements of various legislators, taken out of context, can be marshaled in support of the proposition that [Title VI] enacted a purely color-blind scheme, without regard to the reach of the Equal Protection Clause, these comments must be read against the background of both the problem that Congress was addressing and the broader view of the statute that emerges from a full examination of the legislative debates.
The concurring liberal Justices said much the same thing:
The legislative history of Title VI, administrative regulations interpreting the statute, subsequent congressional and executive action, and the prior decisions of this Court compel this conclusion. None of these sources lends support to the proposition that Congress intended to bar all race-conscious efforts to extend the benefits of federally financed programs to minorities who have been historically excluded from the full benefits of American life.
The Court could put all that aside, however, and say that since the textualist turn, legislative history cannot overcome the plain language of the statute, which categorically bars race discrimination by recipients (like UNC and Harvard) of federal funds--and the forbidden race discrimination includes "reverse discrimination."
But would that be a fair reading of the text of Title VI? In Bakke, Powell noted (correctly) that "[t]he concept of 'discrimination,' like the phrase 'equal protection of the laws,' is susceptible of varying interpretations . . . ." Under one interpretation, "discrimination" based on race means drawing a distinction based on race. Under this approach, race-based affirmative action is unlawful discrimination, full stop. But under another familiar understanding, the drawing of distinctions isn't discrimination unless the distinctions are invidious--and advantaging members of historically and currently disadvantaged racial groups isn't invidious. Thus, under this plausible reading of Title VI, race-based affirmative action isn't discrimination based on race.
We don't really need to guess which of these interpretations the current conservative super-majority favors. They will say that discrimination means drawing a distinction, full stop. They could even cite Justice Gorsuch's opinion in the Bostock case. There, he wrote with respect to Title VII and sex discrimination:
What did “discriminate” mean in 1964? As it turns out, it meant then roughly what it means today: “To make a difference in treatment or favor (of one as compared with others).”
So the conservatives could say that if discrimination means the formal drawing of lines (without a further requirement of invidious animus) for one part of the 1964 Civil Rights Act, it should mean the same thing throughout.
Case closed, right? As a predictive matter, sure. This Court will eliminate affirmative action. But I don't think the argument works substantively for two reasons.
First, in order to adopt the formal-distinctions line in the Harvard and UNC cases, the Court needs to show not only that this is a permissible reading of the statute (which it is) but that the Bakke Court got it so wrong--egregiously wrong?--as to overcome the force of stare decisis. Above I predicted that the Court would overrule Bakke/Grutter, but I didn't say it would be justified in doing so. And stare decisis should suffice to dispatch Bostock, at least given the Court's willingness in various contexts to read the same statutory word differently when it has good reason to do so--which stare decisis provides.
Second, if Title VI is a categorical prohibition on any use of race, it forbids even those very limited uses of race that the Supreme Court's conservatives have allowed as a compelling interest--such as government remedying its own identified discrimination (as explained in a portion of the Croson opinion that spoke for a majority). Perhaps one or more Justices would be content to impose a complete categorical bar (including in the Title VII context), but that would mean uprooting more than Bakke/Grutter.
Thus, Title VI does not provide a doctrinally easier way for the Court to invalidate affirmative action than does equal protection--which is not to say that UNC or Harvard will prevail (but that's my legal realism talking again).