Opinion | A Supreme Court Compromise on Affirmative Action?

It’s now clear that a Supreme Court majority is poised to curtail or end the use of racial preferences in higher education admissions. For those of us who have criticized preferences as a divisive and counterproductive way to achieve racial progress, reversing past policy would be a good thing. But how the court does it is just as important.

During five hours of oral arguments on Monday, Justice Neil Gorsuch returned time and again to a seemingly obscure line of questioning: What if we think about the lawsuits against Harvard and the University of North Carolina strictly through the lens of the Civil Rights Act of 1964? His line of questioning may mean that he (and some of his colleagues) are envisioning a valuable compromise solution.

The Supreme Court’s prior cases on racial preferences in higher education focused on public universities: the Universities of California (Bakke), Michigan (Gratz, Grutter) and Texas (Fisher). Plaintiffs in those cases alleged that the universities had violated both Title VI of the Civil Rights Act of 1964, which prohibits discrimination in government-funded schools, and the 14th Amendment to the Constitution, which provides that states shall not deny anyone “the equal protection of the laws.” Starting with Bakke, many justices treated the Title VI claim as essentially coterminous with the 14th Amendment claim, meaning the same limitations on racial preferences existed under both frameworks. That is why, for example, little distinction has been made in the current cases between Harvard and UNC, even though Harvard — as a private university that receives federal funds — is covered by Title VI but not the 14th Amendment, and UNC — as a state university — is subject to both.

The current plaintiffs want the Supreme Court to overrule Grutter and hold that both the 14th Amendment and Title VI prohibit racial preferences. But the court could do something simpler: Rule that racial preferences at universities violate the plain language of Title VI and that it is simply unnecessary to reach the constitutional issue.

A Title VI solution offers several compelling advantages. Yes, it would upend the status quo on affirmative action, but with a slightly narrower approach. And it would do so by strengthening the Supreme Court and our democratic governance, while still allowing colleges to take race into account with some necessary guardrails.

For one thing, a focus on Title VI puts the court on firmer legal ground. As Jonathan Mitchell pointed out in an amicus brief to the court, the language of Title VI is clear: “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.” Multiple sponsors of Title VI, including the great liberal Sen. Hubert Humphrey, said emphatically on the floor of the Senate that this would not provide any basis for race-based preferences. By contrast, the 14th Amendment does not refer to programs at all — it guarantees “equal protection of the laws,” which was largely intended to outlaw the “Black codes” common in the 1860s, under which white people had a number of civil rights denied to Black people. As Justice Sonia Sotomayor pointed out on Monday, no one seemed to object in the late 1860s to some Reconstruction programs that solely provided benefits to Black Americans (free Black people as well as former slaves).

As court-watchers know, Gorsuch focused on the very similar, literal language of Title VII of the Civil Rights Act of 1964 in his landmark Bostock opinion. In that 6-3 decision, the court ruled that because Title VII prohibited discrimination based on sex, employers could not discriminate based on sexual orientation or transgender status. The decision was a victory for liberals and a powerful example of the Supreme Court elevating law over ideology. A decision here, based on similar grounds and leaving the constitutional issue alone, would remind observers of Bostock and thus enhance the court’s legitimacy rather than appearing as simply an ideological, conservative effort to rip up past precedents.

A decision based on Title VI would also leave the door open for a legislative response and thus increase congressional accountability. On Monday, the Biden administration’s solicitor general reminded the court that many military leaders view the limited use of racial preferences by the military academies as crucial to their efforts to create an integrated officer corps. (While there is considerable evidence that large racial preferences in many colleges and professional schools ultimately undermine minority performance and lower rates of entry into professions, this does not seem to be true of the military academies). Lawmakers frequently struggle to find common ground in a dysfunctional Congress, but a bipartisan majority may be able to carve out a limited exception for military academies — particularly if sought by military leadership — or engage in other modest, supervised experiments.

The Title VI solution could also resolve a troubling dilemma posed by Justice Ketanji Brown Jackson. If the court bans universities from considering race, she asked, does that prevent a Black applicant from writing an essay that discusses how race has influenced his life and shaped his identity? Under established jurisprudence applying the Civil Rights Act of 1964, this problem has a solution. Universities can and do currently utilize admissions criteria where white people outperform Black people, so long as they can demonstrate that those criteria are related to student outcomes. It should not be hard for universities to show that students who have overcome difficult life challenges perform better in college than would be predicted by their credentials alone.

The key here — and another benefit of the Title VI solution — is that universities would need to become more rigorous and transparent about how their admissions systems work. For two generations, courts have unsubtly encouraged universities to engage in opaque “holistic admissions” systems in which racial considerations are disguised by lots of vague “diversity” talk. Under a strictly race-neutral application of Title VI, that would change. Taking life experience into account — including experiences related to race — would be fine, so long as universities can show, through various scoring and weighting systems, exactly what influence it has, so that an outsider can determine that the university is indeed evaluating hardships overcome, and not simply using a racial preference in disguise.

University racial preference programs have many problems. The Harvard and UNC records show that preferences are much larger than universities admit. They create academic performance disparities on campus. They increasingly penalize Asian-Americans, an eclectic group that itself has suffered harms from past discrimination. They make less and less sense in a society where “multiracial” individuals are the fastest growing demographic group.

The Title VI solution provides a moderate path to reform, replacing the notoriously confusing language of Grutter with a clear, legitimate legislative standard. And by focusing on a statutory source, not the Constitution itself, this approach would put the question of preferences squarely into the democratic forum.