Precedent Does Not Protect Preferences

This fall, the Supreme Court will hear claims that two colleges are engaging in racial discrimination in their admissions programs in violation of Title VI of the Civil Rights Act. In Students for Fair Admissions v. Harvard, students of Asian descent have alleged discrimination and shown, among much other evidence, that Harvard admits a slightly smaller percentage of Asian Americans ranked in first academic decile (based on scores and grades) than it does African Americans ranked in the fourth decile from the bottom. Students for Fair Admissions v. University of North Carolina raises similar issues. For instance, in the fifth academic decile, the admission rate of African American students is over forty percent greater than whites and students of Asian descent.  

Title VI reads simply: “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.” Title VI applies to all colleges that receive federal funds, including student aid. Because almost all colleges get some federal money, this is the most important case for higher education in decades.

The Court will consider whether to overrule its past cases, including Regents v. Bakke, Grutter v. Bolinger,  and Fisher v. University of Texas, that permitted race-based affirmative action in admissions so long as it promoted “diversity” and was carried out through “holistic methods” rather than quotas. Thus, one of the central issues in next term’s cases will be the stare decisis effect of these prior cases. It will likely be argued that the earlier holdings should be reaffirmed because of a rule that gives particularly heavy weight to statutory precedent as opposed to constitutional precedent. But reliance on stare decisis to insulate these cases from reconsideration would be mistaken, regardless of whether the Court determines that underlying issue is statutory or constitutional.

Super Stare Decisis for Statutory Cases

The Court has generally followed a rule that we might call “super stare decisis,” by which it almost invariably follows the precedents of its prior statutory interpretations. It is much stronger than the rule in constitutional cases. This stance on statutory stare decisis derives from two rationales.

One has to do with Congressional action. Unlike the Constitution, which is difficult to amend, statutes can be changed at the will of Congress and the President. So, the Court has reasoned, by failing to overrule a prior decision of the Court, Congress has, in essence, approved of its interpretation. But this first rationale is a fiction and an unconstitutional one to boot. Congress has many reasons—inertia, the press of other business, and politics—to avoid taking up issues the Court has resolved. Silence is not approval. Moreover, the Constitution makes clear that the only way Congress can affect its citizens’ rights and duties is through passing a bill and presenting it to the President for his signature. We should not allow congressional silence to change our legal obligations.

The other rationale is rooted in the separation of powers and judicial restraint. Given that its prior interpretation resolved contested issues, opting for a different interpretation is as much a matter of policy as law and should be left up to Congress.

The persuasiveness of the second rationale, however, depends on the Court’s having resolved a provision that is truly ambiguous. If the Court does not have a clear legal answer, the argument runs, it must make a policy choice, and changes in policy should be left to the body that makes policy—the legislature. Ambiguity, therefore, is what arguably makes the matter one of policy rather than law and calls for future judicial restraint. But if the Court mistakenly resolved an unambiguous statute, its interpretation remains one of law, and it becomes judicial abnegation, not restraint, for the Court to fail to correct its own error.

Title VI is unambiguous when it comes to preferential admission on the basis of race. It tells us that “No person” can be “excluded from participation in, or be subjected to discrimination under any program . . .  receiving Federal financial assistance” on the ground “of race, color, or national origin.”

The language could hardly be clearer. Nevertheless, the earlier courts have not followed the text, but have instead interpreted the language as if it read like the Fourteenth Amendment’s somewhat broader “equal protection of the laws,” rather than the pellucid command of Title VI. But there is no relevant ambiguity in the meaning of “excluded from participation in” or “race, color, or national origin” that importing the Equal Protection Clause helps clarify. Title VI could have been written to follow the constitutional provision, but did not.

Indeed, far from clarifying any ambiguity, the decision to interpret Title VI’s clear language to follow the Equal Protection Cause necessarily made the cases more difficult. The Clause is more abstract and less specific than the statute. The Court majorities in Bakke and subsequent cases were thus more easily able to claim that, while the Clause imposed substantial scrutiny on any race-conscious programs, the benefits of diversity met that heavy burden.

The Court has said race can be used as a plus factor, but cannot be used to impose a quota. But if race is used as a sufficiently large plus factor, it can become indistinguishable from a quota.

And if there was any doubt about whether this statute precluded the affirmative action that the Court claimed the Equal Protection Clause permitted, as Justice John Paul Stevens noted in his dissent, the comments in the legislative history made clear that it prohibited discrimination regardless of the race of those discriminated against. Sadly, the Supreme Court has often read clear statutory mandates for color-blind non-discrimination to permit racial and ethnic preferences. But as Justice William Rehnquist said of a similar distortion of Title VII of the Civil Rights Act, these readings have not been so much examples of  statutory interpretation as “tour de force[s] . . . reminiscent of such escape artists as Houdini.”

Yet another mistake of the previous Title VI cases is that they reached out to create a constitutional issue that was unnecessary to decide. Revisiting the egregiously wrong interpretation of Title VI will also have the advantage, well recognized in the Court’s jurisprudence, of avoiding a constitutional question where possible. The meaning of the Equal Protection Clause as applied to affirmative action would then be left for a day when that question is presented.

Equal Protection and Precedent

But even if the Court does apply super stare decisis to its prior interpretation that Title VI tracks the Equal Protection Clause, it does not follow that its Equal Protection Clause analysis itself should get super stare decisis protection. Indeed, since its past precedents make rulings on Title VI indistinguishable from constitutional rulings, it is constitutional stare decisis that becomes the relevant doctrine. And, as noted above, that doctrine is much more flexible than statutory stare decisis, precisely because the Constitution is so much harder to amend than a statute.

Many originalists believe that even the current doctrine of constitutional stare decisis is too demanding. Justice Clarence Thomas has argued that it should only protect interpretations of the Constitution that are not clearly erroneous. Mike Rappaport and I would not go quite so far, but argue that it should take better account of the value of the original meaning and insulate a smaller subset of precedents, such as those whose overruling would create enormous costs. But even the Supreme Court’s own precedent on precedent should not shield the affirmative action decisions from being overruled.

The Court’s doctrine of constitutional stare decisis considers several factors to assess whether prior cases should be subject to overruling if the Court finds them erroneous. First, the Court considers whether the rule of the prior case has proven to be workable in practice. The diversity rationale is not workable, because it has no clear limiting principle. The Court has said race can be used as a plus factor, but cannot be used to impose a quota. But if race is used as a sufficiently large plus factor, it can become indistinguishable from a quota. And these cases demonstrate how plus factors effectively become quotas. It is impossible for courts to police an unclear line, particularly where universities are determined to flout it. Moreover, universities generally try to be as nontransparent as possible about these matters, forcing those who want to police the line to go to the trouble—and enormous expense—of suing just to find out what the school’s policies are.

Second, the Court looks to whether a constitutional interpretation has generated substantial reliance interests. Here again, the affirmative action cases fail. Universities admit new classes every year and frequently reexamine their admission criteria. They can do so immediately if the Court changes the constitutional rule. True, some students will not be admitted to the university they might have if the affirmative action rule stood. But it would be odd to consider that a reliance interest: Students who might have been admitted under affirmative action to Harvard can go to one of the many colleges that have more lenient standards for admission. Students work hard in high school to go to college although it is never clear which one they will ultimately attend. A reversal in affirmative action cases should not change that effort.

The most diffuse factor in the Court’s approach to constitutional precedent is whether there has been a change in the understanding of the facts underlying the decision to be overruled. In Planned Parenthood v. Casey, for instance, the Court justified the prior overruling of some “laissez-faire” cases, like Lochner, decided before the New Deal because “the “lesson” became clear “to most people” about the “fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare.”

Whatever one thinks of this justification (and it seems quite subjective and subject to manipulation), it can apply equally in the affirmative action case. The changed understanding of the defects of laissez-faire was evidenced by very substantial popular support for the New Deal—an anti-laissez-faire program. In the case of affirmative action, since the Grutter case that upheld diversity-promoting affirmative action, we have seen a rejection of the factual assumption about the capacity of preferential admissions to treat different groups fairly. States such as Michigan, Washington, and California have all voted in referenda against racial preferences in admissions at their public universities, which are of course subject to the Equal Protection Clause. 

The 2020 referendum in California was particularly telling. In the most liberal large state in the union, a proposition to legalize racial preferences in college admissions was overwhelmingly defeated despite having had a more than 10 to 1 advantage in spending during the campaign. Belief in the injustice of racial preferences has become more widely shared, thus justifying a revisiting of the precedent under this factor as well.

It does not follow of course, that the Court’s Equal Protection holding in favor of diversity should be overruled even if revisited. That question has been debated elsewhere, including by my colleague Michael Rappaport. The most obvious solution, of course, would be to hold that Title VI’s clear language forbids racial preferences. But if the Court reaches this Equal Protection question, it should not be precluded by super precedent from considering its previous interpretations anew.