Balkinization: Scholars’ Brief in Fisher v. University of Texas Urges New Look at Text and History of the Fourteenth Amendment

Scholars’ Brief in Fisher v. University of Texas Urges New Look at Text and History of the Fourteenth Amendment

David Gans

On Monday, Constitutional Accountability Center filed an amici curiae brief in the Supreme Court in Fisher v. University of Texas, urging the Court to reaffirm that the Fourteenth Amendment permits the sensitive use of race to foster equality in education and to uphold the University of Texas’s use of race as one factor among many in its holistic admissions policy. Our brief, filed on behalf of CAC and six of the nation’s most prominent constitutional scholars—Bruce Ackerman, Jack Balkin, Burt Neuborne, James Ryan, Eric Schnapper, and Adam Winkler—demonstrates that the text and history of the Fourteenth Amendment permit the government to take race into account in certain circumstances in order to ensure equality of opportunity for all persons regardless of race.

Fisher v. University of Texas—now back at the Supreme Court for a second time—is the latest effort by the conservative legal movement to have the Supreme Court reinterpret the Fourteenth Amendment and strike down race-conscious admissions policies that have helped ensure diversity on college campuses. Over the last four decades, conservative Justices have been waging a long-running battle against affirmative action and other race-conscious measures to ensure equality of opportunity, claiming the mantle of Justice’s Harlan’s dissent in Plessy v. Ferguson to argue that the Fourteenth Amendment prohibits virtually all use of race by the government. As Chief Justice John Roberts famously put it, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Progressives, all too often, have missed their most powerful rejoinder: the Fourteenth Amendment’s text and history. As our brief explains, not only does the Amendment’s text permit government to enact race-conscious policies to fulfill the Constitution’s promise of equality, but the Framers of the Amendment themselves enacted many such measures. In nearly forty years of Supreme Court litigation, conservatives have never been able to square their arguments with the fact that the Framers of the Fourteenth Amendment were the originators of affirmative action.

The Constitution is certainly color-blind to a certain extent. In writing the broadest textual guarantee of equality in our Constitution, the Framers of the Fourteenth Amendment very deliberately rejected limitations on the scope of the Equal Protection Clause. As the text of the Equal Protection Clause makes clear, every person can invoke its universal guarantee of equality. It was precisely for this reason that Justice Harlan declared in Plessy that the “Constitution is color-blind, and neither knows nor tolerates classes among citizens.” But color-blind does not mean blind to reality. Both in writing the text and in enacting race-conscious measures to foster equality, the Framers of the Fourteenth Amendment resoundingly rejected the notion that the government could not take race into account in order to ensure equality of opportunity for all persons regardless of race. Faced with the task of fulfilling President Lincoln’s promise of a “new birth of freedom” and integrating African Americans into the civic, economic, and social life of the nation, the Framers recognized that the Constitution could not be simplistically colorblind.

Far from establishing a ban on the sensitive use of race by the government, the Framers of the Fourteenth Amendment rejected proposals to prohibit any and all use of racial classifications by the government. Indeed, throughout Reconstruction, the Framers enacted a long list of race-conscious measures designed to ensure equality of opportunity for all persons regardless of race. These acts were not limited to the former slaves or the goal of redressing badges of slavery or other government-sponsored racial discrimination. Rather, the race-conscious measures enacted by the Framers of the Fourteenth Amendment were forward-looking in design, seeking to ensure equality of opportunity and fulfill the promise of equality contained in the Fourteenth Amendment. The nation’s first affirmative action programs—which included federal efforts to ensure equal educational opportunity for African Americans—were debated and often opposed on the ground that the legislation classified on account of race. The Framers consistently rejected these arguments. In their view, efforts to ensure equality of opportunity and assist African Americans in securing the full measure of freedom promised in the Fourteenth Amendment were fully in accord with the constitutional principle of equality.

When conservative Supreme Court Justices insist that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race” and that the government may not take race into account in order to foster equality in education, they are turning the Fourteenth Amendment on its head. The Framers of the Fourteenth Amendment recognized that forward-looking, race-conscious efforts in the field of education were necessary to fulfill the Constitution’s promise of meaningful equality. African Americans could not fully enjoy the freedom promised by the Fourteenth Amendment until school houses and college gates were opened wide so that African Americans could rise to become the nation’s next generation of lawyers, doctors, and statesmen. Today, colleges and universities around the country have recognized that the sensitive use of race continues to be necessary to obtain the educational benefits of diversity and ensure a path to leadership and professional life for African Americans and other racial minorities. Nearly 150 years after ratification of the Fourteenth Amendment, the Framers’ judgment demands respect. The Supreme Court in Fisher should honor it.

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's brief in Fisher. This post is cross-posted at Text and History.

Posted 11:47 AM by David Gans [link]