On the affirmative action ruling, the Supreme Court got it half right

Is the Supreme Court’s ruling on SFFA v. Harvard a good decision? Well, yes and no. It’s a great decision with regard to the University of North Carolina and a bad decision with regard to Harvard. How can that be?

The answer is that the court was applying different legal provisions to the two schools. It was applying the Equal Protection Clause of the Fourteenth Amendment to UNC and Title VI of the Civil Rights Act of 1964 to Harvard. The Equal Protection Clause applies to government action. The Civil Rights Act applies to the actions of private parties.

There are good reasons to interpret the Equal Protection Clause as prohibiting the government from treating citizens differently on the basis of their race or ethnicity.

The government is the agent of the citizenry, all of whom are required to support it with their taxes and possess equal status as its principal. As the agent of all citizens, government has a fiduciary duty to act exclusively in the interests of all citizens — in the common interest. A government that acted to advance the interests of some racial or ethnic groups over others would be violating this duty.

But more importantly, as our history amply demonstrates, racial and ethnic distinctions are an especially fertile ground for political exploitation. Because race and ethnicity are immutable and easily identifiable characteristics, racial and ethnic groups are ideal vehicles for political rent seeking. Politicians can always curry votes and amass political capital by valorizing or demonizing the members of particular racial and ethnic groups.

The argument for interpreting the Equal Protection Clause as prohibiting all racial preferences is not that we are a color blind society. It is that we absolutely are not a color blind society. And for that reason, we dare not empower politically motivated officials to distribute public benefits and burdens on the basis of race and ethnicity.

The same logic does not apply to the Civil Rights Act, which is designed to regulate the behavior of private individuals and entities. The purpose of the Civil Rights Act is prevent private parties from attempting to disadvantage and degrade others because of their race or ethnicity. It is designed to prevent employers and educational institutions from excluding or placing special hurdles in the way of minorities due to racial or ethnic animus.

The Civil Rights Act should obviously be interpreted to prohibit such oppressive discrimination. But there is no reason to interpret it to prevent private parties from acting for the benefit of racial or ethnic minorities. Group self-help is the traditional way socially subordinated minorities overcome unfair biases. Members of minority groups who succeed often want to extend hiring or educational preference to others from their group in order to “give something back to the community.” And those who believe that justice demands special help to minorities to overcome the effects of unjust past discrimination will want to engage in voluntary affirmative action. There is no reason to interpret the Civil Rights Act as prohibiting private parties from using racial or ethnic preferences for such beneficent purposes.

Since the California v. Bakke in 1978, the Supreme Court has interpreted Title VI in the same way as Equal Protection Clause. This was always inappropriate. The two provisions serve different purposes. The Equal Protection Clause is an essential prophylactic designed to eliminate the incentive for politicians to reap political capital by dividing the citizenry up by race and ethnicity. The Civil Rights Act was passed to end the oppressive discrimination that kept Africian-Americans and other minorities in socially subordinated positions. It makes no sense to interpret it as prohibiting benign race- and ethnicity-consciousness efforts to achieve that very end.

We live in a pluralistic society in which different people hold different conceptions of what justice demands. Some may believe that justice requires that citizens never assign benefits or burdens on the basis of race or ethnicity. Others may believe that justice requires race- and ethnicity-conscious decision making to remedy the effects of past invidious discrimination.

In such a pluralistic society, one may have the right not to have his or her life prospects reduced because of the unfair racial or ethnic prejudices of others. This is the right the Civil Rights Act was passed to vindicate. But no one has the right to impose his or her conception of justice on others. This implies that Title VI should not be read as prohibiting private parties from engaging in voluntary affirmative action.

The court was on solid ground in denying UNC the ability to consider race and ethnicity in its admission decisions. As a state university, UNC is an arm of the state and can properly be barred from picking winners and losers on the basis of race or ethnicity.

The same is not true of Harvard. As a private university, Harvard owes no fiduciary duty to the citizenry as a whole and has the right to define its own mission and values as long as they do not involve oppressive discrimination against minorities. If it believes that its mission is advanced by assembling a racially and ethnically diverse student body, it should not be a violation of the Civil Rights Act to pursue that mission.

By failing to distinguish the law that applies to government from the law applies to private parties in SFFA v. Harvard, the court got it only half right.

John Hasnas is a Professor of Business at Georgetown University’s McDonough School of Business and Professor of Law (by courtesy) at Georgetown Law.