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In Justice Roberts's ruling in Students for Fair Admissions v. Harvard College overturning affirmative action in the United States, he holds that "Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment."

Later, he writes (all emphases added):

The conclusion reached by the Brown Court was unmistakably clear: the right to a public education 'must be made available to all on equal terms'."

Brown’s “fundamental principle that racial discrimination in public education is unconstitutional.”

For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.

Why would the Equal Protection Clause apply to private universities? The EPC restricts certain state actions. And other Constitutional amendments do not apply to private universities.

The only opinion in this decision I could find that addressed this issue at all was Justice Gorsuch's concurrence in section II.B:

Title VI says: “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.” The Equal Protection Clause reads: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” ...

The Equal Protection Clause operates on States. It does not purport to regulate the conduct of private parties. By contrast, Title VI applies to recipients of federal funds—covering not just many state actors, but many private actors too. In this way, Title VI reaches entities and organizations that the Equal Protection Clause does not. ... Title VI bears independent force beyond the Equal Protection Clause.

While Gorsuch is not explicitly clear on this point, I read this as saying that he believes that Harvard's policies are illegal, but under Title VI of the Civil Rights Act (42 U.S. Code § 2000d), not under the Equal Protection Clause of the Fourteenth Amendment. But this seems like a pretty major departure from Roberts' position (which I don't understand) that the EPC applies to both Harvard and UNC.

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    You are right about Gorsuch, although I think you've missed his main point: both cases should be decided using Title VI.
    – Just a guy
    Jul 2, 2023 at 23:08
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    @Justaguy Section II.B of Gorsuch's opinion seems somewhat ambiguous to me, but I read it slightly differently. I agree that he argues that the EPC of the 14th Amendment and Title VI have distinct scopes. But he also says "Today, the Court corrects course in its reading of the Equal Protection Clause." From this, I conclude that he thinks that Harvard's affirmative action program is illegal under Title VI, while UNC's affirmative action program is both unconstitutional under the EPC and illegal under Title VI, so its invalidity is doubly determined. Jul 3, 2023 at 12:17
  • Thanks, that's helpful. I stand by my comment about Gorsuch, but you are right that it's too short and way too snarky to be helpful. Let me re-write my answer to explain where Gorsuch fits in. I hope after reading it you'll agree Gorsuch isn't being ambiguous. (In my defense, I was going to discuss Gorsuch, but the answer would have been too long with all that nit-picking about the Syllabus.)
    – Just a guy
    Jul 3, 2023 at 21:36
  • Harvard is not a private institution it receives many millions in government funding and support.
    – Neil Meyer
    Jul 4, 2023 at 7:17
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    @NeilMeyer Legally speaking, Harvard is a private institution. The fact that it receives millions in government funding and support is irrelevant to that point. Jul 4, 2023 at 17:47

3 Answers 3

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Justice Gorsuch attempts to explain (at p. 20 of his concurrence):

In the years following Bakke, this Court hewed to Justice Powell's and Justice Brennan's shared premise that Title VI and the Equal Protection Clause mean the same thing. ... As a result, for over four decades, every case about racial preferences in school admissions under Title VI has turned into a case about the meaning of the Fourteenth Amendment.

A journalist's account on scotusblog also notes that the tests under Title VI and under the 14th amendment have been understood as identical:

Private universities like Harvard are not subject to the 14th Amendment, but Title VI applies the same test to private universities that receive federal funds, as Harvard does.

See also commentary from a law firm blog in 2022:

Harvard, as a private university, is not explicitly regulated by the Fourteenth Amendment. Instead, the case against Harvard relies on Title VI of the Civil Rights Act of 1964, which prohibits any entity receiving federal financial assistance – as Harvard does – from discriminating on the basis of “race, color, or national origin.” The Supreme Court has held that Title VI’s protections match those of the Fourteenth Amendment’s Equal Protection Clause, and thus, the analyses are essentially identical.

I read the majority reasons to be a continuance of this conflated meaning.

In footnote 2, Chief Justice Roberts is careful to say that the Court is evaluating Harvard's admissions program "under the standards of the Equal Protection Clause" (emphasis mine), rather than stating that the Equal Protection Clause applies against Harvard. Later, he does slip back into language that could be read as suggesting the Equal Protection Clause is being applied directly: "For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause," but a better reading is that he is merely recognizing that Title VI imports the same guarantees of the Equal Protection Clause.

Justice Gorsuch would prefer to re-introduce the analytical clarity about the source of the constraints.

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    I wish that Chief Justice Roberts had been a little clearer with his language. Many news outlets are reporting that he declared Harvard's affirmative action policy to be "unconstitutional". While this claim is perhaps technically correct, it gives the misleading impression that the only way to reverse the Court's ruling would be to amend the Constitution. But in fact, Harvard's policy could be legalized "merely" through legislation that amends Title VI - still a very high hurdle, but much lower than a Constitutional amendment. Jul 5, 2023 at 17:15
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TL;DNR: You are right. Roberts says Harvard should lose because it violates the 14th Amendment. But he does not say the 14th Amendment applies directly to Harvard. He says Title VI and the 14th Amendment impose the same requirements, so that the 14th Amendment's standards effectively apply to Harvard via Title VI.

Justice Roberts explains the link between Harvard and the 14th Amendment clearly on page six of his opinion. In the body of the text, he points out that the two suits are based on different laws: The suit against UNC is based on the 14th Amendment, while the suit against Harvard is based on Title VI of the Civil Rights Act.

Then, in footnote 2 on that same page, he cites footnote 23 in Gratz to show that Title VI and the 14th Amendment impose the same requirements. Because the two laws impose the same requirements, he can "evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself."

In other words, when Roberts says at the end of his opinion that, "the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause," he is leaving it to the reader to add, "and thus the Harvard admissions program violates Title VI."

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    Thanks for catching that some of the quoted lines were from the syllabus, not from Roberts's opinion. I've edited the question to fix that mistake. Jul 3, 2023 at 11:55
  • @VeryTinyBrain You are welcome. Glad I could help. Keeping the parts of decisions straight is hard, especially at first. Now that you've fixed the mistake, I've =deleted that part of my answer. PS If it makes you feel any better, Roberts' wording is confusing unless you are already familiar with this area of the law. (Even Jen, whose answer you accepted, was confused, as you can see from how she kept fine-tuning her answer.)
    – Just a guy
    Jul 3, 2023 at 21:18
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Harvard university receives substantial money from the federal government. There is a federal law prohibiting racial discrimination in education, 42 USC 2000d, which says

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.

A purely private educational institution that received no federal money (including processing federal student aid) is not subject to this restriction (though it would be subject to state analogs). See p. 6 of the opinion. Beyond that, I'm not sure what is unclear. The former policies plainly did discriminate by not protecting some people just as much as other people.

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    The question was about the Equal Protection Clause of the Fourteen Amendment. Jul 2, 2023 at 22:20
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    You might point out that the statute you cite is the codification of Title VI of the Civil Rights Act, which is cited in the case and in the other answers.
    – Just a guy
    Jul 2, 2023 at 23:22

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