I have to agree with you that if the Supreme Court was going to overturn prior decisions on affirmative action, it should have done so through the plain text of Title VI, instead of the 14th Amendment as filtered through the specifics of a fractured Court's precedent.
As Justice Jackson argues, equal protection is not identical to non-discrimination or color blindness. Guaranteeing a group equal protection can mean passing laws specifically protecting that group from ways that they are targeted that others are not. It can also mean taking action to right injustices that have effects of unequal protection or result from prior unequal protection.
But that's harder to argue with the language of non-discrimination that Congress passed in the Civil Rights Act. You could make a case that "non-discrimination" in this case carries a public meaning derived from the 14th Amendment, so that righting injustices is within its scope rather than what you might guess with no context. Since I haven't read Bakke, maybe that's what it does and you're being ungenerous. But even if so, the 14th Amendment says equal protection, and Title VI says non-discrimination, and affirmative action is easier to square with the former than the latter.
If the Court ruled narrowly based on the law before them, as you suggest and as they should, then Congress could in theory revise the Civil Rights Act with language that enables affirmative action. By making a ruling based on the Constitution, the Court tells Congress that even if they could muster the votes, the law wouldn't last. It won't be worth the political cost, so don't try. Since you probably oppose affirmative action, maybe this changes your mind that the Court acted rightly and shrewdly!
Should the Court also ban legacy admissions, which have clear racial bias, in accordance with Title VI? In your view, could it have done so within this same decision, by including them as an at least partially race-based admissions practice?
Legacy preferences are easy from a policy perspective: yes, ban 'em.
Congress should ban legacy preferencing from all institutions receiving federal funding. They corrupt our alleged meritocracy (by diluting it with aristocrats) *and* our aristocracy (by giving our young aristocrats the mistaken impression they are meritocrats). Legacy and affirmative action admissions policies only really exist in a handful of highly selective institutions, serving a narrow slice of the already-narrow slice of Americans who finish college... but that slice happens to be our ruling class, so it matters a lot to all of us, indirectly, when the meritocracy doesn't actually look for merit. Congress should therefore act, even though it only directly affects a few people.
For once, I even have some optimism that Congress *will* act. Democrats and Republicans, on average, both seem to hate legacy admissions, albeit for different reasons.
Now, could the *courts* ban legacy admissions? Mayyybe. Thinking only about Title VI (not the Equal Protection Clause), SFFA v. Harvard was a super-easy case: Harvard made decisions about applicants explicitly on the basis of their race, so all that was left to do was apply the law. Legacy admissions do not *explicitly* decide between applicants on a racial basis, so it's obviously going to be harder to get them shut down for racial discrimination.
However, it's well-established that, even when policies that do not *explicitly* discriminate racially, if the policy-maker consciously institutes them in order to disadvantage members of some race, that's illegal. It is also well-established (in some cases on firm ground; in others, IMHO, on very shaky ground) that a facially neutral policy, even where the policy-maker has absolutely no conscious racist intent or implementation, may *still* be illegal racial discrimination if it has a sufficiently "disparate impact" on some race.
That means legacy admissions *could be* illegal, and, if they are, should be struck down by courts. But making this case would be a lot harder and involve a lot more fact-based analysis, and, even if you could prove disparate impact, whether it's illegal in this instance would depend on a lot of statutory text and legal precedents that I don't know all that well lining up in exactly the right way. If someone filed the case, and it seemed to have legs (i.e. they won in district court and either won or divided the appeals court), it's something I'd read with interest.
But Congress (and/or state-level bans, like California and Michigan have) seems like the more promising approach to me.
"By making a ruling based on the Constitution, the Court tells Congress that even if they could muster the votes, the law wouldn't last. It won't be worth the political cost, so don't try. Since you probably oppose affirmative action, maybe this changes your mind that the Court acted rightly and shrewdly!"
Nah. I mean, I do oppose affirmative action on policy grounds, but I think the Court needs to do what the law requires, no more no less, and (as I argued in the piece), I think they went further than they needed to go here. As I also argued in the piece, I think that was out of misplaced insistence on stare decisis rather than any deeper political maneuver. Works out pretty well for me, policy-wise, but I still think it was a mistake.
On FIRE lately!! Keep the hits coming
I do it for you, Willy!
I have to agree with you that if the Supreme Court was going to overturn prior decisions on affirmative action, it should have done so through the plain text of Title VI, instead of the 14th Amendment as filtered through the specifics of a fractured Court's precedent.
As Justice Jackson argues, equal protection is not identical to non-discrimination or color blindness. Guaranteeing a group equal protection can mean passing laws specifically protecting that group from ways that they are targeted that others are not. It can also mean taking action to right injustices that have effects of unequal protection or result from prior unequal protection.
But that's harder to argue with the language of non-discrimination that Congress passed in the Civil Rights Act. You could make a case that "non-discrimination" in this case carries a public meaning derived from the 14th Amendment, so that righting injustices is within its scope rather than what you might guess with no context. Since I haven't read Bakke, maybe that's what it does and you're being ungenerous. But even if so, the 14th Amendment says equal protection, and Title VI says non-discrimination, and affirmative action is easier to square with the former than the latter.
If the Court ruled narrowly based on the law before them, as you suggest and as they should, then Congress could in theory revise the Civil Rights Act with language that enables affirmative action. By making a ruling based on the Constitution, the Court tells Congress that even if they could muster the votes, the law wouldn't last. It won't be worth the political cost, so don't try. Since you probably oppose affirmative action, maybe this changes your mind that the Court acted rightly and shrewdly!
Should the Court also ban legacy admissions, which have clear racial bias, in accordance with Title VI? In your view, could it have done so within this same decision, by including them as an at least partially race-based admissions practice?
Legacy preferences are easy from a policy perspective: yes, ban 'em.
Congress should ban legacy preferencing from all institutions receiving federal funding. They corrupt our alleged meritocracy (by diluting it with aristocrats) *and* our aristocracy (by giving our young aristocrats the mistaken impression they are meritocrats). Legacy and affirmative action admissions policies only really exist in a handful of highly selective institutions, serving a narrow slice of the already-narrow slice of Americans who finish college... but that slice happens to be our ruling class, so it matters a lot to all of us, indirectly, when the meritocracy doesn't actually look for merit. Congress should therefore act, even though it only directly affects a few people.
For once, I even have some optimism that Congress *will* act. Democrats and Republicans, on average, both seem to hate legacy admissions, albeit for different reasons.
Now, could the *courts* ban legacy admissions? Mayyybe. Thinking only about Title VI (not the Equal Protection Clause), SFFA v. Harvard was a super-easy case: Harvard made decisions about applicants explicitly on the basis of their race, so all that was left to do was apply the law. Legacy admissions do not *explicitly* decide between applicants on a racial basis, so it's obviously going to be harder to get them shut down for racial discrimination.
However, it's well-established that, even when policies that do not *explicitly* discriminate racially, if the policy-maker consciously institutes them in order to disadvantage members of some race, that's illegal. It is also well-established (in some cases on firm ground; in others, IMHO, on very shaky ground) that a facially neutral policy, even where the policy-maker has absolutely no conscious racist intent or implementation, may *still* be illegal racial discrimination if it has a sufficiently "disparate impact" on some race.
That means legacy admissions *could be* illegal, and, if they are, should be struck down by courts. But making this case would be a lot harder and involve a lot more fact-based analysis, and, even if you could prove disparate impact, whether it's illegal in this instance would depend on a lot of statutory text and legal precedents that I don't know all that well lining up in exactly the right way. If someone filed the case, and it seemed to have legs (i.e. they won in district court and either won or divided the appeals court), it's something I'd read with interest.
But Congress (and/or state-level bans, like California and Michigan have) seems like the more promising approach to me.
"By making a ruling based on the Constitution, the Court tells Congress that even if they could muster the votes, the law wouldn't last. It won't be worth the political cost, so don't try. Since you probably oppose affirmative action, maybe this changes your mind that the Court acted rightly and shrewdly!"
Nah. I mean, I do oppose affirmative action on policy grounds, but I think the Court needs to do what the law requires, no more no less, and (as I argued in the piece), I think they went further than they needed to go here. As I also argued in the piece, I think that was out of misplaced insistence on stare decisis rather than any deeper political maneuver. Works out pretty well for me, policy-wise, but I still think it was a mistake.