Justice Scalia began his concurring opinion in Schuette v. BAMN last week by writing that, in this case, “we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” And he’s right that the Fourteenth Amendment and the Michigan ballot initiative at issue in Schuette each bars racial and ethnic discrimination in university admissions.
But the juxtaposition is even more “frighteningly bizarre” when we place side-by-side the text of the Michigan Civil Rights Initiative (which covers public university admissions, among other things) and Title VI of the federal 1964 Civil Rights Act (which covers public university admissions, among other things).
Here’s the language of the MCRI: Public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” And here’s the language of Title VI of the 1964 CRA: “No person in the United States shall, on the ground of race, color, or national origin, be … be subjected to discrimination” by a public university.
Putting sex aside, which is admittedly odd in the university context, to say that the two prohibitions are not identical requires one to argue that you can give a “preference” to some racial/ethnic groups without “discriminating” against the other racial/ethnic groups. Well, that’s silly, although of course there is no doubt that Justices Sotomayor and Ginsburg would so argue if this were all there was between them and preserving racial discrimination, I mean preference.
The reason that courts apply the Equal Protection Clause rather than Title VI these days, by the way, is that a majority of the justices held in Bakke that the two are coextensive and that the former contains some wiggle room that the plain text of the latter does not. Too bad.