WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Students for Fair Admissions v. University of North Carolina, the first of two cases in which the Court is considering whether it is permissible for public and private institutions of higher education to use race as a factor in admitting a truly diverse student body and providing pathways to leadership for all persons regardless of race, Constitutional Accountability Center Civil Rights Director David Gans issued the following reaction:

In more than three hours of oral argument today, the Court’s conservative supermajority repeatedly ignored the text and history of the Fourteenth Amendment. The Court’s so-called conservative originalists repeatedly suggested that any use of race is unconstitutional without grappling with the original meaning of the Fourteenth Amendment or the long line of race-conscious measures enacted contemporaneous with the Fourteenth Amendment. The same conservative supermajority that repeatedly claims the mantle of originalism to move the law to the right showed stunningly little interest in originalist arguments in this case. This is a selective and unprincipled form of originalism.

Perhaps the Court’s conservatives recognized that if they meaningfully grappled with the text and history of the Fourteenth Amendment, they would have had to recognize that the Framers of the Fourteenth Amendment were the originators of affirmative action and affirmative action is consistent with the Fourteenth Amendment’s original meaning. The same members of Congress who wrote the constitutional amendment guaranteeing the equal protection of the laws to all persons also contemporaneously enacted many race-conscious measures designed to foster racial equality. In other words, race-consciousness is baked into the text and history of the Fourteenth Amendment, as both Justice Kagan and Justice Sotomayor observed in their questions.

The view pushed by the conservative supermajority—that universities may take into account every sort of diversity except for racial diversity—turns the Fourteenth Amendment on its head. As Justice Ketanji Brown Jackson powerfully made the case, if you let prospective applicants for admission invoke every aspect of their identity and background except for race, the result will be unconstitutional discrimination against people of color—exactly what the Fourteenth Amendment was adopted to prevent.

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Resources:

Case page in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard College: https://www.theusconstitution.org/litigation/students-for-fair-admissions-v-harvard-college-students-for-fair-admissions-v-university-of-north-carolina/

David Gans, Race-Consciousness Is Baked Into the Constitution’s Text and History, Oct. 3, 2022: https://www.theusconstitution.org/blog/blog-race-consciousness-is-baked-into-the-constitutions-text-and-history/

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Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at www.theusconstitution.org.

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