constitutional-law us-constitution us-supreme-court fourteenth-amendment
Why did CJ Roberts apply the Fourteenth Amendment to Harvard, a private school?
<p>In Justice Roberts's ruling in <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf" rel="noreferrer">Students for Fair Admissions v.
Harvard College</a> overturning affirmative action in the United States, he holds that &quot;Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.&quot;</p>
<p>Later, he writes (all emphases added):</p>
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<p>The conclusion reached by the Brown Court was unmistakably clear: the right to a <em>public</em> education 'must be made available to all on equal terms'.&quot;</p>
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<p>Brown’s “fundamental principle that racial discrimination in <em>public</em> education is unconstitutional.”</p>
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<p>For the reasons provided above, the <em>Harvard</em> and UNC admissions programs cannot be reconciled with the guarantees of the <em>Equal Protection Clause</em>.</p>
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<p>Why would the Equal Protection Clause apply to private universities? The EPC restricts certain <em>state</em> actions. And <a href="https://law.stackexchange.com/questions/63912/do-students-have-first-amendment-rights-at-a-private-university">other Constitutional amendments do not apply to private universities</a>.</p>
<p>The only opinion in this decision I could find that addressed this issue at all was Justice Gorsuch's concurrence in section II.B:</p>
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<p>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.” ...</p>
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<p>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.</p>
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<p>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), <em>not</em> 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.</p>

<p>Justice Gorsuch attempts to explain (at p. 20 of his concurrence):</p>
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<p>In the years following <em>Bakke</em>, 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.</p>
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<p>A <a href="https://www.scotusblog.com/2021/02/affirmative-action-at-harvard-border-searches-and-pedestrian-safety/" rel="noreferrer">journalist's account on scotusblog</a> also notes that the tests under Title VI and under the 14th amendment have been understood as identical:</p>
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<p>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.</p>
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<p>See also <a href="https://www.constangy.com/newsroom-newsletters-1178" rel="noreferrer">commentary from a law firm blog</a> in 2022:</p>
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<p>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.</p>
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<p>I read the majority reasons to be a continuance of this conflated meaning.</p>
<p>In footnote 2, Chief Justice Roberts is careful to say that the Court is evaluating Harvard's admissions program &quot;under the <em>standards</em> of the Equal Protection Clause&quot; (emphasis mine), rather than stating that the Equal Protection Clause <em>applies</em> against Harvard. Later, he does slip back into language that could be read as suggesting the Equal Protection Clause is being applied directly: &quot;For the reasons provided above, the Harvard and UNC
admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,&quot; but a better reading is that he is merely recognizing that Title VI imports the same <em>guarantees</em> of the Equal Protection Clause.</p>
<p>Justice Gorsuch would prefer to re-introduce the analytical clarity about the source of the constraints.</p>

<p><strong>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 <em>standards</em> effectively apply to Harvard <em>via Title VI</em>.</strong></p>
<p>Justice Roberts explains the link between Harvard and the 14th Amendment clearly <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf#page=14" rel="noreferrer">on page six</a> 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.</p>
<p>Then, in footnote 2 on that same page, he cites <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep539/usrep539244/usrep539244.pdf#page=33" rel="noreferrer">footnote 23 in Gratz</a> to show that Title VI and the 14th Amendment impose the same requirements. Because the two laws impose the same requirements, he can &quot;evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.&quot;</p>
<p>In other words, when Roberts says <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf#page=47" rel="noreferrer">at the end of his opinion</a> that, &quot;the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,&quot; he is leaving it to the reader to add, &quot;<em>and thus the Harvard admissions program violates Title VI.</em>&quot;</p>

<p>Harvard university receives substantial money from the federal government. There is a federal law prohibiting racial discrimination in education, <a href="https://www.law.cornell.edu/uscode/text/42/2000d" rel="noreferrer">42 USC 2000d</a>, which says</p>
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<p>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.</p>
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<p>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.</p>
