Race-Conscious Measures and the U.S. Constitution: CAC’s Brief in Fisher Explains Difference Between a No Trespassing Sign and a Welcome Mat

CAC President Doug Kendall: “The Constitution is colorblind, but it is not blind to reality.”

              

Washington, DC –  In a groundbreaking brief filed today in the U.S. Supreme Court in the case of Fisher v. University of Texas at Austin on behalf of luminaries in the study of the Constitution’s Fourteenth Amendment, Constitutional Accountability Center examines the text of the Amendment and the history of its drafting, and shows that not only does the Amendment’s text permit the enactment of race-conscious policies to foster equality, but that the Framers of the Amendment themselves enacted many such measures.

 

CAC President Doug Kendall said, “Conservatives who purport to revere the text of the Constitution and the people who wrote it must confront the historical analysis we provide to the Court in this brief.  The fight among proponents and opponents of affirmative action has too often been reduced to sound bites about whether the Fourteenth Amendment is ‘colorblind.’ Yes, the Constitution is colorblind,” Kendall continued, “but it is not blind to reality.”

 

The law professors represented by CAC in this brief are among the nation’s leading scholars of the Fourteenth Amendment, including Bruce Ackerman, Sterling Professor of Law and Political Science, Yale Law School; Vikram Amar, Associate Dean for Academic Affairs and Professor of Law, University of California at Davis School of Law; Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment; Burt Neuborne, Inez Milholland Professor of Civil Liberties, New York University School of Law; James E. Ryan, William L. Matheson & Robert M. Morgenthau Distinguished Professor of Law, University of Virginia School of Law; and Adam Winkler, Professor of Law, UCLA School of Law.

 

CAC Civil Rights Director David Gans said, “The text and history of the Fourteenth Amendment make clear that the Constitution permits race-conscious measures to ensure equality of opportunity to all persons.  The Framers of the Fourteenth Amendment never lost sight of what Justice John Paul Stevens once called ‘the difference between a ‘No Trespassing’ sign and a welcome mat.’ Neither should we.”

 

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Resources:

 

*  CAC’s “friend of the court” brief to the U.S. Supreme Court in Fisher v. University of Texas at Austin: http://theusconstitution.org/cases/briefs/fisher-v-university-texas/amicus-brief-fisher-v-university-texas

 

*  The Constitution at a Crossroads: “Brown v. Brown: Will the Supreme Court Interpret the Equal Protection Clause to Invalidate Measures Designed to Promote Equal Opportunity and Redress Our Nation’s Long History of Racial Discrimination?” http://theusconstitution.org/think-tank/crossroads/brown-v-brown-will-supreme-court-interpret-equal-protection-clause-invalidate

 

*  CAC Text and History Narrative Series: “Perfecting the Declaration: The Text and History of the Equal Protection Clause of the Fourteenth Amendment,” http://theusconstitution.org/think-tank/narrative/perfecting-declaration-text-and-history-equal-protection-clause-fourteenth

 

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Constitutional Accountability Center (https://www.theusconstitution.org) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.

 

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