Civil and Human Rights

Gans: Fisher case a test for conservatives

The case of Fisher v. University of Texas, argued before the U.S. Supreme Court last week is a momentous test of principle for the court’s conservative justices. Led by Justices Antonin Scalia and Clarence Thomas, conservatives insist that the only true way to interpret the Constitution is to follow the text and history of our Nation’s founding charter.


Yet for decades now, conservative justices have been waging a long-running battle against affirmative action, while pointedly ignoring that the framers of the 14th Amendment were the original proponents of affirmative action, enacting numerous race-conscious measures to fulfill the Constitution’s promise of equality. In writing the 14th Amendment, the framers recognized that race-conscious measures were sometimes necessary to help realize the constitutional guarantee of the equal protection of the laws. Fisher tests whether conservatives will finally honor, or continue to disregard, the 14th Amendment’s text and history.


Conservatives like to claim that the Constitution is colorblind, and to a certain extent it is. The framers of the 14th Amendment wrote a universal guarantee of equality, sweeping men and women of all races and groups into its coverage. Every person in this country can invoke the broad guarantee of equality contained in the equal protection clause. But, faced with the task of fulfilling President Abraham Lincoln’s promise of a “new birth of freedom” and integrating African-Americans as equal citizens into the nation’s civic life, the framers recognized that the Constitution could not be blind to the reality of our nation’s long history of racial subordination. The framers consistently rejected the notion that, in all circumstances, the government must be colorblind, forbidden from providing race-conscious assistance.


In writing the text, the framers rejected language that would have prohibited all use of race by the government, proposals that would have forbidden race-conscious governmental assistance to fulfill the guarantee of equality contained in the 14th Amendment. Throughout Reconstruction, in fact, the framers of the 14th Amendment repeatedly approved race-conscious assistance to African-Americans — the most important of these being an attempt 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 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 14th Amendment were consistent with, not contrary to, the new constitutional guarantee of equality. The framers of the 14th Amendment never once lost sight of what Justice John Paul Stevens called “the difference between a ‘No Trespassing’ sign and a welcome mat.”


When conservative Supreme Court Justices insist that “the way to stop discriminating 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 14th Amendment on its head. The framers of the 14th Amendment recognized that 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 14th Amendment, the framers’ judgment demands respect. The Supreme Court in Fisher should honor it.

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