For decades a notable number of U.S. colleges and universities, such as Harvard and the University of North Carolina (UNC) have decided which applicants to admit or reject for their small number of coveted spots based in part on the race of the applicant. This is known as affirmative action. On June 29, 2023, the U.S. Supreme Court issued a long-awaited decision addressing the legality of race-conscious affirmative action in college admissions programs in the case SFFA v. Harvard (Harvard case). The Court held in its decision written by Chief Justice John Roberts that Harvard and UNC’s admissions programs, which account for race at various stages in the process, violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. While the Court noted that promoting diversity in higher education was a commendable goal, the affirmative action policies used by Harvard and UNC were not “sufficiently coherent” to survive strict scrutiny in the context of having racial preferences in the admissions process. Justice Neil Gorsuch filed a concurring opinion, in which Justice Thomas joined. Justice Gorsuch argues that in addition to the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 does not tolerate this practice of race-based affirmative action either.
A frequent requirement in the Common Application to several U.S. higher education institutions, is that applicants are prompted to tick one or more boxes to explain “how you identify yourself”. The choices available are: American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or other Pacific Islander; Hispanic or Latino; or White. Justice Gorsuch argues that these classifications rest on incoherent stereotypes. For example, the “Asian” category divides into one pile East Asians and South Asians, even though together they constitute around 60% of the world’s population. The “White” category includes anyone from Europe, Asia west of India, and North Africa. These boxes originate from a federal interagency commission in the 1970s which aimed to facilitate data of college admissions. The commission acted without any input from anthropologists, sociologists, ethnologists, or other experts. Despite the original aim of this practice, institutions such as Harvard and UNC have been using the responses as a method to ensure a certain level of diversity amongst their students, while also discriminating against specific races. In Harvard it was argued that at least 10% of Harvard’s admitted class would likely not be admitted in the absence of Harvard’s race-conscious admissions process. Thus, race-based tips are determinative in securing favorable decisions for a significant percentage of a particular race.
Title VI prohibits a recipient of federal funds from intentionally treating any individual worse – even in part – than another similarly situated person because of their race, color, or national origin. It does not matter if the recipient can point to “some other factor” that contributed to its decision to disfavor an individual. Additionally, it does not matter if the recipient discriminated in order to advance some other intention or motivation. Justice Gorsuch argues that Congress in 1964 could have taken this law in various directions but instead chose a simple and profound rule to safeguard the civil rights of all Americans. To support his argument, Justice Gorsuch noted the short step from Title VI to Title VII, under which Congress made it unlawful for an employer to discriminate against any individual because of their race, color, religion, sex, or national origin. The Supreme Court has long recognized that when Congress uses the same terms in the same statute, it should be presumed that they have the same meaning. Justice Gorsuch describes the statues as having “materially identical language” and analogizing the definition of “discrimination” under Title VI to the parallel definition of “discrimination” under Title VII as found in Bostock v Clayton County. In Bostock the court found that to “discriminate against” a person means “treating that individual worse than others who are similarly situated”. Thus, this same definition should be given to the wording of Title VI.
In arguing that Title VI applies to the Harvard case, Justice Gorsuch states that no one disputes that both universities operate programs or activities receiving federal financial assistance, that both institutions consult race when making their admissions decisions and that there is no doubt that both Harvard and UNC treat some applicants worse than others at least in part because of their race. Title VI has been misinterpreted for decades stemming from the Supreme Court’s decision in Bakke. In Bakke it was argued that Title VI is coterminous with the Equal Protection Clause and thus they read Title VI to prohibit recipients of federal funds from doing what the Equal Protection Clause prohibits States from doing. The Equal Protection Clause reads: “No State shall deny to any person within its jurisdiction the equal protection of the laws” thus it operates in States and does not regulate the conduct of private parties. In contrast, Title VI covers not just many State actors, but many private actors too. Therefore, Title VI reaches entities and organizations that the Equal Protection Clause does not. Justice Gorsuch states that the moves made in Bakke were not statutory interpretation, but they were judicial improvisation, which goes against the Supreme Court’s duty to give effect to every clause and word of a statute. He argues now that the Court corrects its reading of the Equal Protection Clause in Harvard, courts should also correct course in their treatment of Title VI. Title VI is more than a mere suggestion; it bears independent force beyond the Equal Protection Clause. It does not grant special deference to university administrators, nor does it endorse racial discrimination to any degree or for any purpose.
To sum up, the removal of discrimination in admission processes is vital to ensure equal opportunity for all regardless of one’s race, color or national origin. Justice Gorsuch convincingly argues that in addition to violating the Fourteenth Amendment of the U.S. Constitution, the affirmative action practice also violates Title VI of the Civil Rights Act since the statute bars discrimination on the ground of race. On this basis, Justice Gorsuch reasoned that affirmative action was forbidden by statute regardless of any constitutional arguments. Title VI has independent force, with language and emphasis in addition to that found in the Constitution and is more than a simple paraphrasing of the Equal Protection Clause. It remains to be seen how the decision in Harvard will impact diversity amongst students in U.S. higher education institutions.
Team Harvard, Case Argumentation Analysis