Thoughts On This Week's Supreme Court Decisions

On affirmative action, public accommodations discrimination, and student debt relief

Dear readers,

It’s been a big week at the Supreme Court, and one in which I think they’ve largely gotten the merits right — with the caveat that I’m not sure the court should have even reached the merits in either the student loan case or the Colorado public accommodations discrimination case. On affirmative action, I think the court was simply correct.

I’m not going to offer a comprehensive take on this week’s big decisions, but I do want to lay out some observations that I feel haven’t been covered sufficiently elsewhere.

Biden v. Nebraska, striking down President Biden’s student loan forgiveness plan:

As I’ve said repeatedly, I think President Biden’s student loan forgiveness plan was both illegal and substantively unwise. Both the forgiveness plan and the endless extensions of the pause on interest and principal payments have contributed to inflation by overstimulating the economy, and the manner in which these policies hand out economic benefits is essentially arbitrary. The idea that either of these programs are necessary in 2023 as a response to the COVID emergency — the purported legal justification — is an obvious fiction. And as recently as a couple of years ago, even Joe Biden and Nancy Pelosi were saying the president lacked the legal authority to forgive student debt. So, I’m not sad to see the policy go.

That said, it’s not clear to me the court should have decided this case.

The majority opinion is premised on the idea that at least Missouri, though maybe not the other suing states, has standing to contest the debt relief plan because MOHELA, a student loan servicing entity created by the state of Missouri, stands to lose servicing fees as a result of the forgiveness plan. My view here is not a strongly held one, but I find Justice Kagan (who wrote the dissenting opinion) more persuasive than the Chief Justice (who wrote for the majority) on the question of whether Missouri really belongs in court when the purported harms from the plan are accruing to a quasi-independent corporate entity that has itself chosen not to sue over the issue.

If the court had dismissed the case for lack of standing, that would have been a deeply unsatisfying outcome — the Biden administration would have successfully crafted an illegal policy to stand because the handful of entities with legal standing to sue had strong business or political reasons not to press their cases. But sometimes the unsatisfying outcome is the legally correct one.

Students for Fair Admissions, Inc. vs. Harvard (SFFA), prohibiting racial preferences in college admissions:

It’s worth looking at Justice Gorsuch’s concurrence here. I think he’s right that Title VI of the Civil Rights Act prohibits racial preferences in admissions in a broader and more categorical way than the 14th Amendment alone. The court’s majority did not reach that issue because the parties argued this case around prior court precedents that treated Title VI as essentially a private-sector carbon copy of the 14th Amendment. But that won’t necessarily be true in future cases.

Protesters for and against affirmative active demonstrate on Capitol Hill on June 29, 2023 in Washington, DC. In a 6-3 vote, Supreme Court Justices ruled that race-conscious admissions programs at Harvard and the University of North Carolina are unconstitutional, setting precedent for affirmative action in other universities and colleges. (Photo by Anna Moneymaker/Getty Images)

Gorsuch is also right to point out that his reasoning about Title VI follows directly from his reasoning about Title VII in his majority opinion in Bostock v. Clayton County, the 2020 decision that held that the Civil Rights Act prohibits employment discrimination on the basis of sexual orientation and gender identity as an inherent consequence of its prohibition of employment discrimination on the basis of sex.

Gorsuch wrote this week in SFFA:

Title VI prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race, color, or national origin. It does not matter if the recipient can point to “some other . . . factor” that contributed to its decision to disfavor that individual… It does not matter if the recipient discriminates in order to advance some further benign “intention” or “motivation.” … Title VI prohibits a recipient of federal funds from intentionally treating any individual worse even in part because of his race, color, or national origin and without regard to any other reason or motive the recipient might assert…

If this exposition of Title VI sounds familiar, it should. Just next door, in Title VII, Congress made it “unlawful . . . for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1). Appreciating the breadth of this provision, just three years ago this Court read its essentially identical terms the same way. See Bostock.

Even under strict scrutiny, the protections of the 14th Amendment are not absolute, and need to be weighed against the government’s ability to pursue other compelling state interests in ways that are narrowly tailored. As Gorsuch notes, this means that, when considering the strictures of the 14th Amendment, the Court must get into detailed analyses of the extent and effect of racial preferences as applied at Harvard and UNC. What he’s arguing is that, if you relied instead on Title VI, none of that would be necessary — the law imposes a much more categorical prohibition on the consideration of race when conferring benefits such as college admission than the Constitution does.

This observation comes from a concurrence and it’s not governing law — not yet. But Justice Thomas, who dissented in Bostock for reasons not directly implicated in the reasoning Gorsuch puts forward here, writes in his own concurrence that he agrees with Gorsuch’s argument about the implications for Title VI.

All of which is to say, I think it is likely that the court’s majority, in a future case where the statutory meaning of Title VI is directly at issue, will follow the path laid out by Gorsuch and hold that racial preferences are legally (though not constitutionally) barred in a much wider variety of settings than the majority opinion in SFFA implies. For example, Gorsuch’s argument would seem to preclude government contracting set-asides for minority- and women-owned businesses. And Gorsuch is also right that the liberal justices should side with him if they really agree with his argument in Bostock (which is not to say they will do so).

I also want to note that a lot of the public commentary on the decision has been excessively focused on the policy question of how college admissions should be conducted, or even on the policy question of what kinds of discrimination should be illegal, when the court’s job is simply to say what the law is. For example, AOC says the court should have abolished legacy admissions. The reason the court didn’t do so is obvious: not only was the question not before them in this case, they would have had no legal grounds to do so even if it were. The Constitution and the Civil Rights Act restrict the ways in which governments and recipients of government funding may discriminate on the basis of race. They are silent about discrimination on the basis of legacy status.

Of course, the law could be changed. Congress could pass a law prohibiting colleges from considering legacy status in admissions. I don’t raise that purely as a theoretical point — I think it would be a perfectly valid policy response for Congress to respond to the end of affirmative action by moving to prohibit a currently legal admissions practice that reinforces advantages accruing to students whose parents also attended college.

Colleges have their reasons for maintaining legacy admissions — legacy preferences encourage donations, and legacy admissions may help colleges boost their matriculation statistics because legacy admits are more likely to matriculate — but neither of those facts creates a good public purpose for allowing schools that rely heavily on government funding to prefer legacies. And I think you could get a lot of support for a legacy ban on both sides of the aisle — it’s a policy that would marry Democrats’ desire to level the playing field on class lines and Republicans’ desire to stick it to hypocritical college administrators. Win-win.

303 Creative v. Elenis, limiting the reach of non-discrimination rules governing the provision of “expressive” goods and services:

As with Nebraska, it’s not clear to me the court should have decided this case. Designer Lorie Smith’s injury was theoretical — she had not yet had the opportunity to reject a commission for a same-sex marriage website, as she has said she would do if asked — and it seems likely that even the feeler she reported receiving about possible business along these lines was fake. That said, even if this case wasn’t ripe, another one would have reached the court sooner or later and presented the justices with very similar questions about when a non-discrimination rule constitutes an unconstitutional compulsion to speak. Tossing this case would only have delayed the inevitable.

As to the merits: I have always been more wary about laws prohibiting discrimination in public accommodations than those prohibiting it in employment and housing. The burden imposed by discrimination in the latter two areas is greater than in the first — it is more harmful to lose your home or your job than your ability to patronize a particular business. And at least in certain lines of business, proprietors have stronger claims that anti-discrimination law burdens their free speech or free exercise rights when they are obligated to conduct certain business than when they are obligated to employ or house certain people. These rights exist in some form even in a business context, and they merit protection even in cases where I disagree (or you disagree) with the proprietor’s views around speech or religion; that is what it means for free speech and free exercise to be rights.

As such, I don't automatically assume that, in any situation where the balance of equities cuts in favor of prohibiting discrimination in employment and housing, that necessarily extends to public accommodations. The strongest arguments for laws against public accommodation discrimination arise when a class of people would otherwise be broadly excluded from some area of the economy, as has clearly been the case for black Americans through much of our history. On the other hand, I do not think the right to walk into any bakery in Colorado and obtain a custom cake for a gay wedding is important. By bringing the hand of the state into such relatively unimportant matters, these laws have made religious conservatives’ points for them, showing that anti-discrimination policies will sometimes burden the rights of relatively sympathetic small businesspeople in the pursuit of fairly trivial ends.

Of course, discrimination in public accommodations is not all — not even principally — about websites and cakes. LGBT people have reasonable concern about the future implications of this decision for situations where the anti-discrimination interests protected by law are of more substantive importance and the free speech interests purportedly impacted by anti-discrimination law are more tenuous. We will have to see what the courts do in future cases. But I want to raise a more optimistic scenario: this decision could strengthen anti-discrimination regimes by finding a way to preserve the core policy initiative while shedding the most absurd edge cases that have taken up so much of our time and attention.

It’s important to note that the decision is not just limited to “expressive” business activities (a category which the courts will have to define more clearly in future cases). It is also limited to cases in which the business owner is motivated to discriminate by the content of the expression. That is, while 303 Creative allows a web designer to refuse to make a website for a gay wedding, it does not allow a web designer to refuse to make a website for a gay client where the designer has no underlying objection to the web site content. It does not exclude entire industries from non-discrimination law — customers would still have recourse to the courts, which would have to consider the fact-specific question of whether the businessperson was actually being asked to speak in a way he or she found objectionable. Not enjoying a categorical exclusion would force business owners to remain mindful of their legal exposure — and is especially likely to encourage the continued implementation of non-discrimination policies at larger, less ideological, more litigation-averse firms.

The category of business activity covered by this decision — cases where a customer is seeking to obtain expression from a businessperson who has a sincere objection to making that expression — is a vanishingly small fraction of our economy, and a fraction where businesspeople have an unusually good argument that anti-discrimination law can burden their valid constitutional interests. If this area can be successfully and cleanly carved out, then anti-discrimination law will be doing a better job of meeting the balance of equities than it had been before. It will also be easier to defend as a political matter, because the most sympathetic parties highlighted by opponents of anti-discrimination law will have had their rights protected.

Finally, to zoom out, I want to compare this decision to Bostock. Bostock did far more to expand the reach of non-discrimination law in employment than 303 Creative does to narrow the reach of non-discrimination law in public accommodations. Non-discrimination is also a more important policy objective in employment than it is in public accommodations. As such, the net effect of recent Supreme Court jurisprudence in this area — through decisions written, in both cases, by Justice Gorsuch — has been to expand protections and improve the policy environment. So I think that’s reason to feel pretty good about where things have been going.

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Whew! That was a lot. I hope you have a great holiday weekend, and I’ll be back with more soon.

Very seriously,

Josh