The U.S. Supreme Court will hear two cases on Oct. 31 about whether universities have illegally discriminated against Asian-Americans. In both cases, Students for Fair Admission asks the court to overturn Grutter v. Bollinger, the 2003 case that held the pursuit of diversity satisfies the strict scrutiny required to overcome the constitutional presumption against discrimination under the 14th Amendment’s Equal Protection Clause.
But the justices can put a stop to racial preferences without reaching the constitutional question. Universities are required to abide by Title VI of the Civil Rights Act of 1964, which is unambiguous about preferential admission on the basis of race. The provision 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.”
There is no indication in its text that Title VI incorporates the Equal Protection Clause. It could have been written to track the Constitution’s language, but it wasn’t. As Justice John Paul Stevens noted in his partial dissent from University of California v. Bakke (1978), the legislative history also indicates a clear intent to prohibit all discrimination on the basis of race.
Nonetheless, the majority in Grutter read the statute as if it applied the Equal Protection Clause. Traditionally, courts read statutes to avoid hard constitutional questions if possible. Grutter did the opposite; it entangled Title VI unnecessarily with the Constitution. Courts also generally interpret clear statutory language to mean what it says. Grutter did the opposite here as well, replacing clear and precise language with vague and ambiguous language not in the statute.