Civil and Human Rights

CAC’s Brief in Fisher v. Univ. of Texas: A History of Race-Conscious Measures and the U.S. Constitution

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’ use of race as one factor in its holistic admissions policy.  The brief is available here.  Our brief, filed on behalf of CAC and six of the nation’s most prominent constitutional scholars – Bruce Ackerman, Vikram Amar, Jack Balkin, Burt Neuborne, James Ryan, and Adam Winkler – demonstrates that the text and history of the Fourteenth Amendment permit government to take race into account in certain circumstances in order to ensure equality of opportunity for all persons regardless of race.

For the last four decades, the fight over the constitutionality of race-conscious measures to foster equality has been reduced to a sound-bite – whether the Fourteenth Amendment is “color-blind” – with conservatives 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.  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.

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, sweeping men and women of all races and classes into its coverage.  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 life of the nation, the Framers recognized that the Constitution could not be simplistically colorblind. 

Far from establishing a ban on the use of race by the government, the Framers of the Fourteenth Amendment, time and again, rejected proposed constitutional language that would have prohibited all race-conscious legislation to assist African Americans in the transition to their new status as equal citizens.  Indeed, throughout Reconstruction, the Framers repeatedly approved race-conscious assistance to African Americans, passing laws that provided educational assistance to newly free slaves as well as African American soldiers, helped to ensure that African American soldiers received bounties for their service in the Union army, and provided benefits to poor, destitute African Americans.  These acts 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 consistent with, not contrary to, the new constitutional guarantee of equality.  The Framers of the Fourteenth Amendment never once lost sight of what Justice John Paul Stevens called “the difference between a ‘No Trespassing’ sign and a welcome mat.”

Fisher gives the Justices the opportunity to consider the constitutionality of race-conscious measures to ensure equality of opportunity in light of this text and history.  In the nearly four decades of Supreme Court precedent on these questions, conservatives have repeatedly claimed that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” but have yet to answer the history of race-conscious measures enacted by the Framers of the Fourteenth Amendment.  Only Justice Thomas has tried, arguing in a footnote in his concurring opinion in Parents Involved in Community Schools v. Seattle School District that “[r]ace-based measures . . . to remedy ­state-enforced slavery were . . . not inconsistent with the color-blind Constitution.”  But, as our brief in Fisher demonstrates, the acts passed by the Framers were not limited to the former slaves or to the goal of redressing badges of slavery.  Rather, like UT-Austin’s use of race at issue in Fisher, they were forward-looking in design, seeking to ensure equality of opportunity for African Americans and fulfill the promise of equality contained in the Fourteenth Amendment.     

We hope the Supreme Court honors the text and history of the Fourteenth Amendment in Fisher and holds that UT’s sensitive use of race in admissions is constitutionally permissible in order to ensure a diverse, integrated student body and to provide pathways to professional life and leadership for all of the state’s residents regardless of race.


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