The Supreme Court’s Affirmative Action cases (Bakke, Fisher, Grutter/Gratz) were all brought against public institutions, each bound by the Equal Protection Clause of the 14th Amendment. But may private colleges also be prohibited in their use of racial preferences? The answer is not a clear no.
Recall that in Bakke, Justice Stevens, joined by Chief Justice Burger, Justice Stewart, and Justice Rehnquist, avoided the constitutional issue. They found that the University of California’s quota system violated Title VI of the Civil Rights Act of 1964, which applies to all institutions of higher education that receives federal money (virtually all of them).
42 U.S.C. 2000d provides:
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.
Justice Powell in Bakke described Title VI “ like that of the Equal Protection Clause, is majestic in its sweep.”
Does a system of racial preferences, like that used in Gratz, violate Title VI? Is Title VI be coterminous with the Equal Protection Clause? Thus, would an Affirmative Action policy that runs afoul of Gratz run afoul of Title VI?
Justice O’Connor’s opinion in Grutter says yes. At the very end, she drops in the Title VI analysis.
In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI and 42 U.S.C. § 1981also 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”); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389—391 (1982) (the prohibition against discrimination in §1981 is co-extensive with the Equal Protection Clause).
Contrariwise, Chief Justice Rehnquist’s opinion in Gratz finds the same:
We conclude, therefore, that because the University’s use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents’ asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment.22 We further find that the admissions policy also violates Title VI and 42 U.S.C. § 1981.23
Rehnquist makes the point quite clear in this footnote that the Court’s affirmative action jurisprudence would apply to private colleges.
23. We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI. See Alexander v. Sandoval, 532 U.S. 275, 281 (2001);United States v. Fordice, 505 U.S. 717, 732, n. 7 (1992); Alexanderv. Choate, 469 U.S. 287, 293 (1985). Likewise, with respect to §1981, we have explained that the provision was “meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race.”McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295—296 (1976). Furthermore, we have explained that a contract for educational services is a “contract” for purposes of §1981. SeeRunyon v. McCrary, 427 U.S. 160, 172 (1976). Finally, purposeful discrimination that violates the Equal Protection Clause of theFourteenth Amendment will also violate §1981. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389—390 (1982).
Note that a number of private universities filed briefs in Grutter/Gratz, recognizing this fact. For example, the brief filed by Larry Tribe on behalf of Harvard University, and other elite private colleges, addresses this concern:
Because Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial “discrimination,” the ability of private colleges and universities to exercise their institutional competence could well be dramatically compromised by any new limits this Court might place on state university admissions criteria or procedures. Accordingly, amici urge this Court to interpret the Constitution and federal statutes to leave amici and other selective educational institutions with latitude to take race and ethnicity into account as positive factors in their individualized admissions processes.
It seems that federal government has taken the position that affirmative action policies are consistent with Title VI–even those above and beyond Grutter.
(i) Even though an applicant or recipient has never used discriminatory policies, the services and benefits of the program or activity it administers may not in fact be equally available to some racial or nationality groups. In such circumstances, an applicant or recipient may properly give special consideration to race, color, or national origin to make the benefits of its program more widely available to such groups, not then being adequately served. For example, where a university is not adequately serving members of a particular racial or nationality group, it may establish special recruitment policies to make its program better known and more readily available to such group, and take other steps to provide that group with more adequate service.
This does not seem consistent with the Supreme Court’s precedents, as this rationale is not limited to the compelling state interest of “diversity,” but instead is aimed at making educational programs “more widely available to certain demographics.”
I’ve heard that there has been a longstanding debate simmering in right-wing circles about whether to bring an affirmative action challenge against a private university.
For those playing at home, as we speak, Ed Blum (who brought Fisher, Shelby County, and other cases) is recruiting plaintiffs at Harvard University to challenge their affirmative action system, presumably under Title VI.
So is my friend Mike Sacks right about Schuette?
The travesty, instead, is the Roberts Court’s inevitable march toward its virtual eradication of affirmative action in the 42 states it remains permitted.
Stay tuned.
More from David Bernstein and Ramesh Ponnuru.