If the Republicans in Congress really disagreed with SAnDra’s holding that “diversity” justifies racial discrimination, they could reverse a substantial portion of it by a simple majority vote of both Houses. If the president agreed, he could sign that reversal into law.
Now for the qualification: the Congress and president could not, of course, reverse that part of the Court’s opinion holding that the 14th Amendment does not bar racial discrimination to promote diversity. But the Court also held, arguably even more unjustifiably, that Title VI of the Civil Rights Act bars only what the 14th Amendment bars, and Congress could reverse that part of the decision. That would be no small matter, as all the recipients of federal aid would be quick to attest.
Title VI provides that
[n]o 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. [42 U.S.C. § 2000d]
In proposing what became Title VI, President Kennedy stated, eloquently:
Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination. Direct discrimination by Federal, State, or local governments is prohibited by the Constitution. But indirect discrimination, through the use of Federal funds, is just as invidious; and it should not be necessary to resort to the courts to prevent each individual violation. [H.R. Misc. Doc. No. 124, 88th Cong., 1st Sess. 3, 12 (1963), quoted here]
“No person” shall be subjected to racial discrimination under any program or activity receiving federal assistance–in any context without lawyers and courts, those words would be clear enough. But, alas, we are in a context of courts and lawyers. It would appear, however, that even they understood what these words meant. The Department of Justice’s own TITLE VI LEGAL MANUAL lays it out pretty clearly:
An intent claim alleges that similarly situated persons are treated differently because of their race, color, or national origin. To prove intentional discrimination, one must show that “a challenged action was motivated by an intent to discriminate.” … This requires a showing that the decisionmaker was not only aware of the complainant’s race, color, or national origin, but that the recipient acted, at least in part, because of the complainant’s race, color, or national origin. However, the record need not contain evidence of “bad faith, ill will or any evil motive on the part of the [recipient of federal funds].” [Case citations omitted.]
Since Michigan, and indeed all diversity discriminators, freely acknowledge that it is both their intent and their practice to treat applicants differently based on their “race, color, or national origin,” SAnDra and the Court have quite obviously flouted clear Congressional intent. Moreover, by in effect deciding that there is no discrimination in the absence of “bad faith, ill will or any evil motive” they have also overturned the line of cases interpreting Title VI on which the DOJ’s Legal Manual was based.
The Republicans Could Reverse Grutter’s Interpretation of Title VI
On numerous occasions in the past when the Supreme Court interpreted a civil rights statute in a manner that displeased Congressional Democrats, they passed laws reversing them. Here are a few examples:
Mobile v. Bolden, 446 U.S. 55 (1980)
After the Court held that discrimination in voting rights cases required evidence of discriminatory intent, Congress rewrote Section 2 of the Voting Rights Act to remove the intent requirement.
Grove City College v. Bell, 465 U.S. 555 (1984)
In a case dealing specifically with Title VI, the Supreme Court limited the reach of Federal agency nondiscrimination requirements to those parts of a recipient’s operation which directly benefitted from Federal assistance. The Civil Rights Restoration Act of 1987 clarified the intent of Congress to include all programs and activities of Federal-aid recipients, subrecipients and contractors.
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
In 1991, under Bush I, the Democrats in Congress engaged in a virtual orgy of Supreme Court reversals. Here’s a description from an EEOC legislative history:
On November 21, 1991, Congress enacted the Civil Rights Act of 1991. Congress acted to address a series of no fewer than seven decisions by the Supreme Court, some of which were regarded as changing the well-established landscape of discrimination law, and calling into doubt existing precedent. Among the decisions that Congress addressed were Price Waterhouse v. Hopkins (1989) and Wards Cove Packing Co. v. Antonio (1989). In Price Waterhouse, the Court provided that, even where a plaintiff demonstrates that an employer was motivated by discrimination, the employer can still escape liability by proving that it would have taken the same action based upon lawful motives. Wards Cove reinterpreted the disparate impact method of proof, and held that an employer can avoid liability merely by showing a business justification for the practice causing a disparate impact, and that the plaintiff has the burden of proving a lack of a business justification. Both cases were seen as having made it more difficult for plaintiffs to prevail in employment discrimination lawsuits.
In addition, the 1991 Act added a new subsection to Title VII, codifying the disparate impact theory of discrimination, essentially putting the law back as it had been prior to Wards Cove. And in response to Price-Waterhouse, the Act provided that where the plaintiff shows that discrimination was a motivating factor for an employment decision, the employer is liable for injunctive relief, attorney’s fees, and costs (but not individual monetary or affirmative relief) even though it proves it would have made the same decision in the absence of a discriminatory motive.
This is not an exhaustive list, but it is long enough to demonstrate that if the Court’s decision in Grutter–that part of it holding that Title VI does not bar the distribution of federal aid to institutions that discriminate on the basis of race–is allowed to stand, it will be because the Republicans, who control both Congress and the White House, are unwilling to reverse it.