Civil and Human Rights

RELEASE: Supreme Court’s Professed Originalists Ignore Constitutional Text and History in Striking Down University Race-Conscious Affirmative Action Programs

WASHINGTON, DC – Following the Supreme Court’s announcement of its decisions in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina, Constitutional Accountability Center Director of the Human Rights, Civil Rights, and Citizenship Program David Gans issued the following reaction:

Chief Justice John Robert’s majority opinion striking down race-conscious affirmative action programs adopted by the University of North Carolina and Harvard College is unfaithful to the Fourteenth Amendment’s text and history. Chief Justice Roberts recites the eloquent words of the Framers of the Fourteenth Amendment who sought to stamp out racial subordination, but he ignores the fact that the same Framers who wrote the Fourteenth Amendment were the originators of affirmative action.

As Justice Sonia Sotomayor observed in a brilliant dissent that echoed CAC’s brief, “[s]imultaneously with the passage of the Fourteenth Amendment, Congress enacted a number of race-conscious laws to fulfill the Amendment’s promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal.” In striking down the use of race to foster equal educational opportunities, the Court’s conservative majority betrays the promise of equal citizenship at the core of the Fourteenth Amendment. Chief Justice Roberts may not like it, but the fact of the matter is that the same Congress that wrote the Fourteenth Amendment passed numerous laws with race-conscious programs over the objection that they were not color-blind.

The Supreme Court’s conservative super-majority claims to be originalist, but as today’s opinion illustrates, the Court’s conservative justices are often quick to turn a blind eye when constitutional text and history point in a progressive direction. Today’s opinion disrespects the handiwork of the Framers of the Fourteenth Amendment and limits the authority of colleges and universities to foster equal opportunities for all students regardless of race—even as systemic longstanding racial inequalities persist. This does violence to the Fourteenth Amendment and its history.



Case page in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina:

David H. Gans, Race-Consciousness Is Baked into the Constitution’s Text and History, CAC Blog:


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


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