Constitution’s history supports affirmative action

One of the biggest questions at the Supreme Court these days isn’t just “how will it rule?” but “when will it rule?” It has been nearly eight months since the Supreme Court heard oral arguments in Fisher v. University of Texas. Fisher is, by far, the oldest case on the Supreme Court’s docket and easily one of its most important. The case was argued at the very beginning of the Supreme Court’s term, and with the end of the term now in sight, we are still waiting for the court’s decision.


It is widely expected that Justice Anthony Kennedy — the only justice who has not penned a ruling for the October sitting — will write the opinion that determines whether to strike down the University of Texas’ admissions policy and establish strict new limits on the use of race in higher education to select a diverse, academically accomplished student body.


Much of the attention on Fisher, when it is finally decided, will be on the results, but the more enduring question will be the meaning of the Constitution. For the past 40 years, conservative justices have been waging war on affirmative action, arguing that the 14th Amendment is colorblind and forbids any use of race to foster equality. As Chief Justice John Roberts put it in a 2007 opinion, “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” This is rhetorically very powerful, but it simply has no basis in the Constitution’s text and history.


The framers of the 14th Amendment were the originators of affirmative action and wrote the equal protection clause with this in mind. In writing the text as a broad guarantee of equality, the framers rejected proposals that would have forbidden race-conscious governmental assistance to fulfill the guarantee of equality contained in the 14th Amendment.


Throughout Reconstruction, the framers of the 14th Amendment repeatedly approved race-conscious assistance to African-Americans; the most important of these measures sought to ensure equality of educational opportunity to African-Americans. As a result of the race-conscious measures enacted by the framers, the federal government established schools, including institutions of higher learning that could ensure pathways to leadership and professional life for all persons, regardless of race.


The nation’s first affirmative action programs were debated and often opposed on the ground that the legislation classified on account of race. The framers of the 14th Amendment 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 amendment were consistent with, not contrary to, the new constitutional guarantee of equality. The framers never once confused oppression and assistance.


Rather than accounting for this history, the conservative arguments in Fisher depend on running from it. The Constitution’s text and history are supposed to matter to the court’s conservatives — particularly originalists like Justices Antonin Scalia and Clarence Thomas, perhaps the most committed foes of affirmative action on the bench — but for nearly 40 years, conservatives have yet to grapple with, let alone answer, the clear import of the 14th Amendment’s text and history. The fundamental question in Fisher is whether the court’s conservatives will finally honor the text and history of the 14th Amendment or continue to disregard it.


Gans is director of the Human Rights, Civil Rights, and Citizenship Program and co-author of the Constitutional Accountability Center’s amicus brief in University of Texas v. Fisher.

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