Non-State Affirmative Action is Now in Congress's Court

Why, you may have wondered, is the Supreme Court telling Harvard, a private university, that it is bound by the Fourteenth Amendment? Reading the majority's opinion and its eight-page opening summary, you might miss that detail. But it's there, in a footnote:

"Title VI provides that “[n]o 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.” 42 U. S. C. §2000d. “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.” Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although Justice Gorsuch questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself."

Justice Gorsuch, concurring, adds: "Without question, Congress in 1964 could have taken the law in various directions."

It still can.

State schools, such as the University of North Carolina, are bound by the Fourteenth Amendment. But the Supreme Court's decision applies to private schools ONLY because of the 1964 Civil Rights Act, which Congress can amend. (Nor does the Fourteenth apply to the federal government, including wholly federal schools, such as the service academies.)

The Court's earlier rulings encouraged a veiled process and some squeamishness about exactly how race was used in permissible affirmative-action programs. But Congress can be as specific or as vague as it wants in adding exceptions to Title VI, to allow, or even to require, affirmative action.

It will be interesting to have this question back in the hands of the elected branches of government, and see if there are solutions that enough senators and representatives can agree on.